EXHIBIT 10.1


 


CUSIP
Number: 88163BAA1


 


 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


dated
as of July 21, 2004


 


among


 


TETRA
TECH, INC.,


 


VARIOUS
FINANCIAL INSTITUTIONS,


 


U.S.
BANK NATIONAL ASSOCIATION

as Documentation Agent,


 


WELLS
FARGO BANK, N.A.,

as Syndication Agent,


 


and


 


BANK
OF AMERICA, N.A.,

as Administrative Agent


 


 


BANC
OF AMERICA SECURITIES LLC 

and

HARRIS NESBITT


 


Joint
Lead Arrangers and Joint Book Managers


 

















 


TABLE OF CONTENTS


 


	
  SECTION 1

  	
  DEFINITIONS

  	
   

  
	
  1.1

  	
  Definitions

  	
   

  
	
  1.2

  	
  Other Interpretive
  Provisions

  	
   

  
	
  SECTION 2

  	
  COMMITMENTS OF THE BANKS; BORROWING,
  CONVERSION AND LETTER OF CREDIT PROCEDURES

  	
   

  
	
  2.1

  	
  Commitments

  	
   

  
	
   

  	
  2.1.1

  	
  Revolving Loans

  	
   

  
	
   

  	
  2.1.2

  	
  L/C Commitment

  	
   

  
	
   

  	
  2.1.3

  	
  Swing Line Loans

  	
   

  
	
  2.2

  	
  Loan Procedures

  	
   

  
	
   

  	
  2.2.1

  	
  Various
  Types of Loans

  	
   

  
	
   

  	
  2.2.2

  	
  Borrowing Procedures
  for Revolving Loans

  	
   

  
	
   

  	
  2.2.3

  	
  Conversion and
  Continuation Procedures

  	
   

  
	
  2.3

  	
  Letter of Credit Procedures

  	
   

  
	
   

  	
  2.3.1

  	
  Letter of Credit
  Applications

  	
   

  
	
   

  	
  2.3.2

  	
  Participations in
  Letters of Credit

  	
   

  
	
   

  	
  2.3.3

  	
  Reimbursement Obligations

  	
   

  
	
   

  	
  2.3.4

  	
  Limitation on
  Obligations of Issuing Bank

  	
   

  
	
   

  	
  2.3.5

  	
  Funding by Banks to
  Issuing Bank

  	
   

  
	
  2.4

  	
  Swing Line Loans

  	
   

  
	
   

  	
  2.4.1

  	
  Swing Line Loan Procedures

  	
   

  
	
   

  	
  2.4.2

  	
  Refunding of, or Funding of Participations
  in, Swing Line Loans

  	
   

  
	
   

  	
  2.4.3

  	
  Repayment of Participations

  	
   

  
	
   

  	
  2.4.4

  	
  Participation
  Obligations Unconditional

  	
   

  
	
  2.5

  	
  Commitments
  Several

  	
   

  
	
  2.6

  	
  Certain
  Conditions

  	
   

  
	
  SECTION 3

  	
  NOTES EVIDENCING LOANS

  	
   

  
	
  3.1

  	
  Notes

  	
   

  
	
  3.2

  	
  Recordkeeping

  	
   

  
	
  SECTION 4

  	
  INTEREST

  	
   

  



 


i

















 


	
  4.1

  	
  Interest Rates

  	
   

  
	
  4.2

  	
  Interest
  Payment Dates

  	
   

  
	
  4.3

  	
  Setting and
  Notice of Eurodollar Rates

  	
   

  
	
  4.4

  	
  Computation
  of Interest

  	
   

  
	
  SECTION 5

  	
  FEES

  	
   

  
	
  5.1

  	
  Facility Fee

  	
   

  
	
  5.2

  	
  Letter
  of Credit Fees

  	
   

  
	
  5.3

  	
  Utilization Fee

  	
   

  
	
  5.4

  	
  Administrative
  Agent’s and Arrangers’ Fees

  	
   

  
	
  5.5

  	
  Computation
  of Fees

  	
   

  
	
  SECTION 6

  	
  CHANGES IN THE COMMITMENT
  AMOUNT; PREPAYMENTS

  	
   

  
	
  6.1

  	
  Changes in the
  Commitment Amount

  	
   

  
	
   

  	
  6.1.1

  	
  Optional
  Increase in the Commitment Amount

  	
   

  
	
   

  	
  6.1.2

  	
  Voluntary
  Reductions of the Commitment Amount

  	
   

  
	
  6.2

  	
  Voluntary
  Prepayments

  	
   

  
	
  SECTION 7

  	
  MAKING AND PRORATION OF
  PAYMENTS; SETOFF; TAXES

  	
   

  
	
  7.1

  	
  Making of Payments

  	
   

  
	
  7.2

  	
  Application of Certain
  Payments

  	
   

  
	
  7.3

  	
  Due Date Extension

  	
   

  
	
  7.4

  	
  Setoff

  	
   

  
	
  7.5

  	
  Proration
  of Payments

  	
   

  
	
  7.6

  	
  Taxes

  	
   

  
	
  SECTION 8

  	
  INCREASED COSTS; SPECIAL
  PROVISIONS FOR EURODOLLAR LOANS

  	
   

  
	
  8.1

  	
  Increased Costs

  	
   

  
	
  8.2

  	
  Basis
  for Determining Interest Rate Inadequate or Unfair

  	
   

  
	
  8.3

  	
  Changes
  in Law Rendering Eurodollar Loans Unlawful

  	
   

  
	
  8.4

  	
  Funding Losses

  	
   

  
	
  8.5

  	
  Right of
  Banks to Fund through Other Offices

  	
   

  
	
  8.6

  	
  Discretion
  of Banks as to Manner of Funding

  	
   

  



 


ii

















 


	
  8.7

  	
  Mitigation of
  Circumstances; Replacement of Affected Bank

  	
   

  
	
  8.8

  	
  Conclusiveness of
  Statements

  	
   

  
	
  SECTION 9

  	
  WARRANTIES

  	
   

  
	
  9.1

  	
  Organization, etc.

  	
   

  
	
  9.2

  	
  Authorization; No Conflict

  	
   

  
	
  9.3

  	
  Validity and Binding Nature

  	
   

  
	
  9.4

  	
  Financial
  Condition

  	
   

  
	
  9.5

  	
  No Material Adverse Change

  	
   

  
	
  9.6

  	
  Litigation and
  Contingent Liabilities

  	
   

  
	
  9.7

  	
  Ownership
  of Properties; Liens

  	
   

  
	
  9.8

  	
  Subsidiaries

  	
   

  
	
  9.9

  	
  Pension
  and Welfare Plans

  	
   

  
	
  9.10

  	
  Investment
  Company Act

  	
   

  
	
  9.11

  	
  Public
  Utility Holding Company Act

  	
   

  
	
  9.12

  	
  Regulation U

  	
   

  
	
  9.13

  	
  Taxes

  	
   

  
	
  9.14

  	
  Solvency, etc.

  	
   

  
	
  9.15

  	
  Environmental
  Matters

  	
   

  
	
  9.16

  	
  Absence of Default

  	
   

  
	
  9.17

  	
  Information

  	
   

  
	
  SECTION 10

  	
  COVENANTS

  	
   

  
	
  10.1

  	
  Reports, Certificates and Other Information

  	
   

  
	
   

  	
  10.1.1

  	
  Audit Report

  	
   

  
	
   

  	
  10.1.2

  	
  Quarterly
  Reports

  	
   

  
	
   

  	
  10.1.3

  	
  Compliance
  Certificates

  	
   

  
	
   

  	
  10.1.4

  	
  Reports to SEC and
  to Shareholders

  	
   

  
	
   

  	
  10.1.5

  	
  Notice of Default, Litigation and
  ERISA Matters

  	
   

  
	
   

  	
  10.1.6

  	
  Subsidiaries

  	
   

  
	
   

  	
  10.1.7

  	
  Management
  Reports

  	
   

  
	
   

  	
  10.1.8

  	
  Collateral
  Information

  	
   

  



 


iii

















 


	
   

  	
  10.1.9

  	
  Other Information

  	
   

  
	
  10.2

  	
  Books, Records and Inspections

  	
   

  
	
  10.3

  	
  Insurance

  	
   

  
	
  10.4

  	
  Compliance with Laws; Payment of Taxes
  and Liabilities

  	
   

  
	
  10.5

  	
  Maintenance
  of Existence, etc.

  	
   

  
	
  10.6

  	
  Financial
  Covenants

  	
   

  
	
   

  	
  10.6.1

  	
  Minimum Net Worth

  	
   

  
	
   

  	
  10.6.2

  	
  Fixed Charge Coverage Ratio

  	
   

  
	
   

  	
  10.6.3

  	
  Adjusted
  Leverage Ratio

  	
   

  
	
  10.7

  	
  Limitations
  on Debt

  	
   

  
	
  10.8

  	
  Liens

  	
   

  
	
  10.9

  	
  Loans or Advances

  	
   

  
	
  10.10

  	
  Restricted
  Payments

  	
   

  
	
  10.11

  	
  Mergers and
  Consolidations; Acquisitions

  	
   

  
	
  10.12

  	
  Asset
  Dispositions

  	
   

  
	
  10.13

  	
  Use of Proceeds

  	
   

  
	
  10.14

  	
  Further
  Assurances

  	
   

  
	
  10.15

  	
  Transactions with
  Affiliates

  	
   

  
	
  10.16

  	
  Employee Benefit Plans

  	
   

  
	
  10.17

  	
  Business
  Activities

  	
   

  
	
  10.18

  	
  Maintenance
  of Property

  	
   

  
	
  10.19

  	
  Environmental Matters

  	
   

  
	
   

  	
  10.19.1

  	
  Environmental Obligations

  	
   

  
	
   

  	
  10.19.2

  	
  Environmental Information

  	
   

  
	
  10.20

  	
  Unconditional
  Purchase Obligations

  	
   

  
	
  10.21

  	
  Inconsistent
  Agreements

  	
   

  
	
  10.22

  	
  Excluded
  Subsidiaries

  	
   

  
	
  SECTION 11

  	
  EFFECTIVENESS;
  CONDITIONS OF LENDING, ETC.

  	
   

  
	
  11.1

  	
  Effectiveness

  	
   

  
	
   

  	
  11.1.1

  	
  Notes

  	
   

  



 


iv

















 


	
   

  	
  11.1.2

  	
  Resolutions

  	
   

  
	
   

  	
  11.1.3

  	
  Consents, etc.

  	
   

  
	
   

  	
  11.1.4

  	
  Incumbency and
  Signature Certificates

  	
   

  
	
   

  	
  11.1.5

  	
  Confirmation

  	
   

  
	
   

  	
  11.1.6

  	
  Opinion of Counsel

  	
   

  
	
   

  	
  11.1.7

  	
  Closing
  Certificate

  	
   

  
	
   

  	
  11.1.8

  	
  Other

  	
   

  
	
  11.2

  	
  Conditions

  	
   

  
	
   

  	
  11.2.1

  	
  Compliance with Warranties, No Default,
  etc.

  	
   

  
	
   

  	
  11.2.2

  	
  Confirmatory
  Certificate

  	
   

  
	
  SECTION 12

  	
  EVENTS OF DEFAULT AND
  THEIR EFFECT

  	
   

  
	
  12.1

  	
  Events of Default

  	
   

  
	
   

  	
  12.1.1

  	
  Non-Payment
  of the Loans, etc.

  	
   

  
	
   

  	
  12.1.2

  	
  Non-Payment
  of Other Debt

  	
   

  
	
   

  	
  12.1.3

  	
  Other Material Obligations

  	
   

  
	
   

  	
  12.1.4

  	
  Bankruptcy, Insolvency, etc.

  	
   

  
	
   

  	
  12.1.5

  	
  Non-Compliance with
  Provisions of This Agreement

  	
   

  
	
   

  	
  12.1.6

  	
  Warranties

  	
   

  
	
   

  	
  12.1.7

  	
  Pension Plans

  	
   

  
	
   

  	
  12.1.8

  	
  Judgments

  	
   

  
	
   

  	
  12.1.9

  	
  Change in Control

  	
   

  
	
   

  	
  12.1.10

  	
  Invalidity of Guaranty, etc.

  	
   

  
	
   

  	
  12.1.11

  	
  Invalidity
  of Collateral Documents, etc.

  	
   

  
	
  12.2

  	
  Effect of Event of Default

  	
   

  
	
  SECTION 13

  	
  THE ADMINISTRATIVE
  AGENT

  	
   

  
	
  13.1

  	
  Appointment and Authorization

  	
   

  
	
  13.2

  	
  Rights as a Bank

  	
   

  
	
  13.3

  	
  Exculpatory
  Provisions

  	
   

  
	
  13.4

  	
  Reliance by Administrative
  Agent

  	
   

  



 


v

















 


	
  13.5

  	
  Delegation
  of Duties

  	
   

  
	
  13.6

  	
  Resignation of
  Administrative Agent

  	
   

  
	
  13.7

  	
  Non-Reliance on Administrative Agent and
  other Banks

  	
   

  
	
  13.8

  	
  No Other Duties.

  	
   

  
	
  13.9

  	
  Administrative Agent may
  File Proofs of Claims

  	
   

  
	
  13.10

  	
  Withholding Tax

  	
   

  
	
  13.11

  	
  Non-Receipt
  of Funds by Administrative Agent

  	
   

  
	
  13.12

  	
  Collateral
  Matters

  	
   

  
	
  SECTION 14

  	
  GENERAL

  	
   

  
	
  14.1

  	
  Waiver; Amendments

  	
   

  
	
  14.2

  	
  Confirmations

  	
   

  
	
  14.3

  	
  Notices

  	
   

  
	
  14.4

  	
  Computations

  	
   

  
	
  14.5

  	
  Regulation U

  	
   

  
	
  14.6

  	
  Expenses; Indemnity;
  Damage Waiver

  	
   

  
	
   

  	
  14.6.1

  	
  Expenses

  	
   

  
	
   

  	
  14.6.2

  	
  Indemnification by the
  Company

  	
   

  
	
   

  	
  14.6.3

  	
  Reimbursement
  By Banks

  	
   

  
	
   

  	
  14.6.4

  	
  Waiver of Consequential
  Damages, etc.

  	
   

  
	
   

  	
  14.6.5

  	
  Payments

  	
   

  
	
  14.7

  	
  Subsidiary
  References

  	
   

  
	
  14.8

  	
  Captions

  	
   

  
	
  14.9

  	
  Assignments; Participations

  	
   

  
	
   

  	
  14.9.1

  	
  Assignments

  	
   

  
	
   

  	
  14.9.2

  	
  Participations

  	
   

  
	
  14.10

  	
  Governing Law

  	
   

  
	
  14.11

  	
  Counterparts

  	
   

  
	
  14.12

  	
  Successors
  and Assigns

  	
   

  
	
  14.13

  	
  Survival of Certain Provisions

  	
   

  
	
  14.14

  	
  Forum
  Selection and Consent to Jurisdiction

  	
   

  
	
  14.15

  	
  Waiver
  of Jury Trial

  	
   

  



 


vi

















 


	
  SCHEDULE 1.1

  	
  Pricing Schedule

  	
   

  
	
  SCHEDULE 2.1

  	
  Banks and Percentages

  	
   

  
	
  SCHEDULE 9.6

  	
  Litigation and Contingent Liabilities

  	
   

  
	
  SCHEDULE 9.8

  	
  Subsidiaries

  	
   

  
	
  SCHEDULE 9.15

  	
  Environmental Matters

  	
   

  
	
  SCHEDULE 10.7

  	
  Existing Debt

  	
   

  
	
  SCHEDULE 10.8

  	
  Existing Liens

  	
   

  
	
  SCHEDULE 14.3

  	
  Addresses for Notices

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
  Form of Note

  	
   

  
	
  EXHIBIT B

  	
  Form of Compliance
  Certificate

  	
   

  
	
  EXHIBIT C

  	
  Copy of Guaranty

  	
   

  
	
  EXHIBIT D

  	
  Copy of Security Agreement

  	
   

  
	
  EXHIBIT E

  	
  Copy of Pledge Agreement

  	
   

  
	
  EXHIBIT F

  	
  Form of Assignment
  Agreement

  	
   

  
	
  EXHIBIT G

  	
  Form of Increase Request

  	
   

  
	
  EXHIBIT H

  	
  Form of Opinion of Counsel

  	
   

  
	
  EXHIBIT I

  	
  Form of Confirmation

  	
   

  



 


vii

















 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


This AMENDED AND RESTATED
CREDIT AGREEMENT dated as of July 21, 2004 (this “Agreement”) is
among TETRA TECH, INC., a Delaware corporation (the “Company”), the
financial institutions that are or may from time to time become parties hereto
(together with their respective successors and assigns, the “Banks”),
U.S. BANK NATIONAL ASSOCIATION, as Documentation Agent, WELLS FARGO BANK, N.A.,
as Syndication Agent, and BANK OF AMERICA, N.A. (in its individual capacity, “Bank
of America”), as administrative agent for the Banks.


 


WHEREAS, the Company,
various financial institutions and Bank of America, as administrative agent,
are parties to a Credit Agreement dated as of March 17, 2000 (the “Existing
Agreement”); and


 


WHEREAS, the parties hereto
have agreed to amend and restate the Existing Agreement;


 


NOW, THEREFORE, the parties
hereto agree as follows:


 


SECTION 1  DEFINITIONS.


 


1.1  Definitions.  When used herein the following terms shall
have the following meanings:


 


Adjusted Consolidated Net
Income means, for any
period, the net income or loss of the Company and its Subsidiaries for such
period, excluding (a) extraordinary nonrecurring gains or losses and (b)
non-cash impairment of property, plant and equipment and of intangible assets.


 


Adjusted EBITDA means, for any Computation Period, the sum
of Adjusted Consolidated Net Income for such period, plus, to the extent
deducted in determining such Adjusted Consolidated Net Income, (x) federal,
state, local and foreign income, value added and similar taxes, (y) Interest
Expense, and (z) depreciation and amortization expense; provided that
Adjusted EBITDA shall be calculated on a pro  forma basis (in
accordance with Article 11 of Regulation S-X of the SEC) giving effect to
(a) any acquisition made by the Company or any Subsidiary during such
Computation Period so long as, and to the extent that, (i) the Company delivers
to the Administrative Agent (which shall promptly deliver to each Bank) a
summary in reasonable detail of the assumptions underlying, and the
calculations made, in computing Adjusted EBITDA on a pro  forma
basis and (ii) the Required Banks do not object to such assumptions and/or
calculations within 10 Business Days after receipt thereof; and (b) any divestiture
of a Subsidiary, division or other operating unit made during such Computation
Period.  If the Company or any
Subsidiary makes any acquisition of a Person or assets which would result in a
negative adjustment to Adjusted EBITDA for any period, the Company shall, upon
request of the Required Banks, deliver the information required pursuant to clause
(a)(i) of the preceding sentence so that the calculation of Adjusted EBITDA
will give effect to such acquisition.


 

















 


Adjusted Leverage Ratio means, as of any date, the ratio of (a)
Funded Debt on such date to (b) Adjusted EBITDA for the Computation Period most
recently ended on or prior to such date.


 


Administrative Agent means Bank of America in its capacity as
administrative agent for the Banks hereunder and any successor thereto in such
capacity.


 


Administrative Questionnaire means an Administrative Questionnaire in a
form supplied by the Administrative Agent.


 


Affected Bank means any Bank that has given notice to the
Company (which has not been rescinded) of (i) any obligation by the Company to
pay any amount pursuant to Section 7.6 or 8.1 or (ii) the
occurrence of any circumstances of the nature described in Section 8.2
or 8.3.


 


Affiliate of any Person means (i) any other Person
which, directly or indirectly, controls or is controlled by or is under common
control with such Person and (ii) any officer or director of such Person.


 


Agent-Related Persons - see Section 14.6.3.


 


Agreement - see the Preamble.


 


Arranger means each of Banc of America Securities LLC
and Harris Nesbitt, in each case in its capacity as a joint lead arranger and a
joint book manager for the credit facility established hereunder


 


Assignee - see Section 14.9.1.


 


Assignment Agreement - see Section 14.9.1.


 


Bank - see the Preamble.  References to the “Banks” shall include the
Issuing Bank and the Swing Line Bank; for purposes of clarification only, to
the extent that Bank of America (or any successor Issuing Bank or Swing Line
Bank) may have any rights or obligations in addition to those of the other
Banks due to its status as Issuing Bank or Swing Line Bank, its status as such
will be specifically referenced.


 


Bank of America - see the Preamble.


 


Base Rate means at any time the greater of (a) the
Federal Funds Rate plus 0.5% and (b) the Prime Rate.


 


Base Rate Loan means any Revolving Loan which bears
interest at or by reference to the Base Rate.


 


Base Rate Margin - see Schedule 1.1.


 


2

















 


Beneficial Owner shall have the meaning assigned thereto in
Rule 13d-3 of the SEC under the Securities Exchange Act of 1934 as in effect on
the date hereof.


 


Business Day means any day on which Bank of America is
open for commercial banking business in Chicago, New York and Charlotte and, in
the case of a Business Day which relates to a Eurodollar Loan, on which
dealings are carried on in the interbank eurodollar market.


 


Capital Expenditures means all expenditures which, in accordance
with GAAP, would be required to be capitalized and shown on the consolidated
balance sheet of the Company, but excluding expenditures made in connection
with the replacement, substitution or restoration of assets to the extent
financed (i) from insurance proceeds (or other similar recoveries) paid on
account of the loss of or damage to the assets being replaced or restored or
(ii) with awards of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced.


 


Capital Lease means, with respect to any Person, any lease
of (or other agreement conveying the right to use) any real or personal
property by such Person that, in conformity with GAAP, is accounted for as a
capital lease on the balance sheet of such Person.


 


Cash Collateralize means to pledge and deposit with or deliver
to the Administrative Agent, for the benefit of the Issuing Bank and the Banks,
as collateral for the obligations of the Company with respect to the Letters of
Credit, cash or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the Issuing Bank (which
documents are hereby consented to by the Banks).  Derivatives of such term have corresponding meanings.  The Company grants to the Administrative
Agent, for the benefit of the Issuing Bank and the Banks, a security interest
in all such cash, all such deposit accounts and all balances therein and all
proceeds of the foregoing.  Cash
Collateral shall be maintained in non-interest-bearing blocked deposit accounts
at Bank of America.


 


CERCLA means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980.


 


CERCLIS means the Comprehensive Environmental
Response Compensation Liability Information System List.


 


Change in Control means that (a) any Person or group (within
the meaning of Rule 13d-5 of the SEC under the Securities Exchange Act of 1934
as amended) shall become the Beneficial Owner of 20% or more of the Voting
Stock of the Company or (b) a majority of the members of the Board of Directors
of the Company shall cease to be Continuing Members.


 


Code means the Internal Revenue Code of 1986.


 


Collateral Agent means Bank of America in its capacity as
Collateral Agent under the Intercreditor Agreement and any successor in such
capacity.


 


3

















 


Collateral Documents means the Pledge Agreement, the Security
Agreement and any other agreement pursuant to which the Company or any
Guarantor grants collateral to the Collateral Agent for the benefit of the
Banks and certain other parties.


 


Commitment Amount means $235,000,000, as changed from time to
time pursuant to Section 6.1.


 


Commitment means, as to any Bank, such Bank’s
commitment to make or participate in Loans, and to issue or participate in
Letters of Credit, under this Agreement.


 


Company - see the Preamble.


 


Computation Period means any period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter.


 


Consolidated Net Income means, with respect to the Company and its
Subsidiaries for any period, the consolidated net income (or loss) of the
Company and its Subsidiaries for such period.


 


Continuing Member means a member of the Board of Directors of
the Company who either (a) was a member of the Company’s Board of Directors on
the Effective Date and has been such continuously thereafter or (b) became a
member of such Board of Directors after the Effective Date and whose election
or nomination for election was approved by a vote of the majority of the
Continuing Members then members of the Company’s Board of Directors.


 


Controlled Group means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Company, are treated as a single employer under Section 414 of the Code or
Section 4001 of ERISA.


 


Debt of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money, whether or not
evidenced by bonds, debentures, notes or similar instruments, (b) all
obligations of such Person as lessee under Capital Leases which have been
recorded as liabilities on a balance sheet of such Person, (c) all obligations
of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business),
including “earn-outs” and similar obligations, (d) all indebtedness secured by
a Lien on the property of such Person, whether or not such indebtedness shall
have been assumed by such Person (it being understood that if such Person has
not assumed or otherwise become personally liable for any such indebtedness,
the amount of the Debt of such Person in connection therewith shall be limited
to the lesser of the face amount of such indebtedness or the fair market value
of all property of such Person securing such indebtedness), (e) all
obligations, contingent or otherwise, with respect to the face amount of all
letters of credit (whether or not drawn) and banker’s acceptances issued for
the account of such Person (including the Letters of Credit), (f) net Hedging
Obligations of such Person and (g) all Suretyship Liabilities of such
Person.  The amount of Debt arising in
connection with any “earn-out” or similar obligation shall be equal to the
maximum reasonably expected liability with respect thereto as of the date of
determination.


 


4

















 


Disposal - see the definition of “Release”.


 


Dollar and the sign “$” mean lawful money of
the United States of America.


 


Effective Date - see Section 11.1.


 


Environmental Claims means all claims, however asserted, by any
governmental, regulatory or judicial authority or other Person alleging
potential liability or responsibility for violation of any Environmental Law,
or for release into or injury to the environment.


 


Environmental Laws means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
or protection of the environment.


 


ERISA means the Employee Retirement Income
Security Act of 1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in effect from time
to time.  References to sections of
ERISA shall be construed to also refer to any successor sections.


 


Eurocurrency Reserve
Percentage means, for
any day for any Interest Period, the maximum reserve percentage (expressed as a
decimal) in effect on such day (whether or not applicable to any Bank) under
regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently referred
to as “Eurocurrency liabilities”).


 


Eurodollar Loan means any Revolving Loan which bears
interest at a rate determined by reference to the Eurodollar Rate (Adjusted).


 


Eurodollar Margin - see Schedule 1.1.


 


Eurodollar Office means, with respect to any Bank, the office
or offices of such Bank described as such in such Bank’s Administrative
Questionnaire or such other office or offices as such Bank may from time to
time specify in writing to the Company and the Administrative Agent.


 


Eurodollar Rate means, for any Interest Period with respect
to a borrowing of Eurodollar Loans:


 


(a)  the rate per annum determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period; or


 


5

















 


(b)  if the rate referenced in clause (a)
does not appear on such page or service or such page or service shall not be
available, the rate per annum determined by the Administrative Agent to be the
offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period; or


 


(c)  if the rates referenced in clauses (a)
and (b) are not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the approximate amount
of the Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be offered by
Bank of America’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 4:00 p.m. (London time) two
Business Days prior to the first day of such Interest Period.


 


Eurodollar Rate (Adjusted) means, with respect to any Eurodollar Loan
for any Interest Period, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined pursuant to the following formula:


 


	
  Eurodollar Rate

  	
   

  	
  =

  	
   

  	
  Eurodollar Rate

  
	
  (Adjusted)

  	
   

  	
   

  	
   

  	
  1-Eurocurrency

  
	
   

  	
   

  	
   

  	
   

  	
  Reserve
  Percentage

  



 


Event of Default means any of the events described in Section 12.1.


 


Excluded Subsidiary means any Subsidiary designated with an
asterisk on Schedule 9.8 and any other Subsidiary designated in
writing by the Company to the Administrative Agent.


 


Exemption Representation - see Section 7.6.


 


Existing Agreement - see the recitals.


 


Existing Letter of Credit means each letter of credit which is
outstanding under the Existing Agreement on the Effective Date.


 


Facility Fee Rate - see Schedule 1.1.


 


Federal Funds Rate means, for any day, the rate per annum equal
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the
immediately following Business Day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the immediately preceding Business Day as so published on the
immediately following Business


 


6

















 


Day; and (b) if no such rate
is so published on such immediately following Business Day, the Federal Funds
Rate for such day shall be the average rate (rounded upward, if necessary, to a
whole multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.


 


Fiscal Quarter means a fiscal quarter of a Fiscal Year.


 


Fiscal Year means any period of 12 consecutive calendar
months ending on Sunday which is closest to the last day of September.  References to a Fiscal Year with a number
corresponding to any calendar year (e.g. “Fiscal Year 2004”) refer to the
Fiscal Year ending on the Sunday which is closest to the last day of
September occurring during such calendar year.  For example, Fiscal Year 2004 shall refer to the Fiscal Year
ending October 3, 2004.  Fiscal
Year 2005 shall refer to the Fiscal Year ending October 2, 2005, and
Fiscal Year 2006 shall refer to the Fiscal Year ending October 1, 2006.


 


FRB means the Board of Governors of the Federal
Reserve System.


 


Funded Debt means all Debt of the Company and its
Subsidiaries, excluding (i) contingent obligations in respect of Suretyship
Liabilities (except, in each case, to the extent constituting Suretyship
Liabilities in respect of Debt of a Person other than the Company or any
Subsidiary), (ii) Hedging Obligations and (iii) Debt of the Company to
Subsidiaries and Debt of Subsidiaries to the Company or to other Subsidiaries.


 


GAAP means generally accepted accounting
principles in the United States of America as set forth from time to time in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S.
accounting profession), which are applicable to the circumstances as of the
date of determination.


 


Group - see Section 2.2.1.


 


Guarantor means, at any time, each Subsidiary that has
executed a counterpart of the Guaranty on or prior to such time (or is required
to execute a counterpart of the Guaranty at such time).


 


Guaranty means the Amended and Restated Guaranty
dated as of May 15, 2001 issued by various Subsidiaries, a copy of which is
attached as Exhibit C.


 


Hazardous Materials means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.


 


7

















 


Hedging Agreement means any interest rate swap, interest rate
cap, interest rate collar or similar agreement protecting against fluctuations
in interest rates, any currency swap, forward currency exchange agreement or
similar agreement protecting against fluctuations in currency exchange rates,
any commodity swap or similar agreement protecting against fluctuations in
commodity prices, any option to enter into any of the foregoing, and any
combination of any of the foregoing.


 


Hedging Obligations means, with respect to any Person,
obligations of such Person under Hedging Agreements.


 


Indemnitee - see Section 14.6.2.


 


Intercreditor Agreement means the Intercreditor Agreement dated as
of May 15, 2001 among the Administrative Agent, the Collateral Agent and
certain other parties relating to obligations of the Company.


 


Interest Expense means, for any Computation Period, the
consolidated interest expense of the Company and its Subsidiaries for such
Computation Period (including all imputed interest on Capital Leases).


 


Interest Period means, as to any Eurodollar Loan, the period
commencing on the date such Loan is borrowed or continued as, or converted
into, a Eurodollar Loan and ending on the date one, two, three or six months
thereafter, as selected by the Company pursuant to Section 2.2.3; provided
that:


 


(i)            if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest Period shall be extended to the
following Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;


 


(ii)           any Interest Period for a Eurodollar Loan that begins on a day for
which there is no numerically corresponding day in the calendar month at the
end of such Interest Period shall end on the last Business Day of the calendar
month at the end of such Interest Period; and


 


(iii)          the Company may not select any Interest Period for any Loan which would
extend beyond the scheduled Termination Date.


 


Issuing Bank means Bank of America in its capacity as
issuer of Letters of Credit hereunder.


 


LC Fee Rate - see Schedule 1.1.


 


Letter of Credit - see Section 2.1.2.  References to “Letters of Credit” shall,
unless the context otherwise requires, include the Existing Letters of Credit.


 


8

















 


Letter of Credit Application means a letter of credit application in the
form then used by the Issuing Bank for the type of Letter of Credit requested
(with appropriate adjustments to indicate that any Letter of Credit issued
thereunder is to be issued pursuant to, and subject to the terms and conditions
of, this Agreement).


 


Lien means, with respect to any Person, any
interest granted by such Person in any real or personal property, asset or
other right owned or being purchased or acquired by such Person which secures
payment or performance of any obligation and shall include any mortgage, lien,
encumbrance, charge or other security interest of any kind, whether arising by
contract, as a matter of law, by judicial process or otherwise.


 


Loan Documents means this Agreement, the Notes, the Guaranty,
the Letter of Credit Applications and the Collateral Documents.


 


Loan Party means the Company and each Guarantor.


 


Loans means Revolving Loans and, where
appropriate, Swing Line Loans.


 


Margin Stock means any “margin stock” as defined in
Regulation U of the FRB.


 


Material Adverse Effect means (a) a material adverse change in, or a
material adverse effect upon, the financial condition, operations, business or
assets of the Company and its Subsidiaries taken as a whole, or (b) a material
adverse effect upon any substantial portion of the collateral under the
Collateral Documents or upon the legality, validity, binding effect or
enforceability against the Company or any Guarantor of any applicable Loan
Document.


 


Multiemployer Pension Plan means a multiemployer plan, as such term is
defined in Section 4001(a)(3) of ERISA, and to which the Company or any
member of the Controlled Group may have any liability.


 


Net Cash Proceeds means, with respect to any issuance of
equity securities, the aggregate cash proceeds received by the Company or any
Subsidiary pursuant to such issuance, net of the direct costs relating to such
issuance (including sales and underwriter’s discounts and commissions and
legal, accounting and investment banking fees).


 


Net Worth means the Company’s consolidated
stockholders’ equity.


 


Note - see Section 3.1.


 


Note Purchase Agreement means the Note Purchase Agreement dated as
of May 15, 2001 pursuant to which the Company issued $110,000,000 of Senior
Secured Notes.


 


PBGC means the Pension Benefit Guaranty
Corporation and any entity succeeding to any or all of its functions under
ERISA.


 


9

















 


Pension Plan means a “pension plan”, as such term is
defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA
(other than a Multiemployer Pension Plan), and to which the Company or any
member of the Controlled Group may have any liability, including any liability
by reason of having been a substantial employer within the meaning of Section 4063
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under Section 4069 of ERISA.


 


Percentage means, with respect to any Bank, the
percentage specified opposite such Bank’s name on Schedule 2.1,
reduced (or increased) by any subsequent assignment pursuant to Section 14.9.1
and any reallocation of Percentages as a result of a non-pro-rata increase in
the Commitment Amount pursuant to Section 6.1.1.


 


Person means any natural person, corporation, partnership,
trust, limited liability company, association, governmental authority or unit,
or any other entity, whether acting in an individual, fiduciary or other
capacity.


 


Pledge Agreement means the Amended and Restated Pledge
Agreement dated as of May 15, 2001 among the Company, various Guarantors, and
the Collateral Agent, a copy of which is attached hereto as Exhibit E.


 


Prime Rate means, for any day, the rate of interest in
effect for such day as publicly announced from time to time by Bank of America
as its “prime rate.”  (The “prime rate”
is a rate set by Bank of America based upon various factors, including Bank of
America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate.)  Any change in the prime rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.


 


RCRA means the Resource Conservation and Recovery
Act.


 


Release has the meaning specified in CERCLA and the
term “Disposal” (or “Disposed”) has the meaning specified in
RCRA; provided that if either CERCLA or RCRA is amended so as to broaden
the meaning of any term defined thereby, such broader meaning shall apply as of
the effective date of such amendment; and provided, further, that
to the extent that the laws of a state wherein any affected property lies
establish a meaning for “Release” or “Disposal” which is broader
than is specified in either CERCLA or RCRA, such broader meaning shall apply.


 


Required Banks means Banks having Percentages aggregating
51% or more.


 


Revolving Loans - see Section 2.1.1.


 


SEC means the Securities and Exchange
Commission.


 


Security Agreement means the Amended and Restated Security
Agreement dated as of May 15, 2001 among the Loan Parties and the Collateral
Agent, a copy of which is attached hereto as Exhibit D.


 


10

















 


Stated Amount means, with respect to any Letter of Credit
at any date of determination, the maximum aggregate amount available for
drawing thereunder at any time during the then ensuing term of such Letter of
Credit under any and all circumstances, plus the aggregate amount of all unreimbursed
payments and disbursements under such Letter of Credit.


 


Subordinated Debt means Debt of the Company having maturities
and other terms, and which is subordinated to the obligations of the Company
and its Subsidiaries hereunder and under the other Loan Documents in a manner,
approved in writing by the Required Banks.


 


Subsidiary means, with respect to any Person, a
corporation, partnership, limited liability company or other entity of which
such Person and/or its other Subsidiaries own, directly or indirectly, such
number of outstanding shares, partnership units or other equity interests as
have more than 50% of the ordinary voting power for the election of the members
of the board of directors or similar governing body of such entity.  Unless the context otherwise requires, each
reference to a Subsidiary herein shall be a reference to a Subsidiary of the
Company.


 


Suretyship Liability means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to or otherwise to
invest in a debtor, or otherwise to assure a creditor against loss) any
indebtedness, obligation or other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Person.  The amount of any Person’s
obligation under any Suretyship Liability shall (subject to any limitation set
forth therein) be deemed to be the principal amount of the debt, obligation or
other liability guaranteed thereby.


 


Swing Line Bank means Bank of America in its capacity as the
lender of Swing Line Loans hereunder.


 


Swing Line Loans - see Section 2.1.3.


 


Taxes - see Section 7.6.


 


Termination Date means the earlier to occur of (a)
July 21, 2009 or (b) such other date on which the Commitments shall
terminate pursuant to Section 6 or 12.


 


Total Outstandings means at any time the sum of (a) the
aggregate principal amount of all outstanding Loans plus (b) the Stated Amount
of all Letters of Credit.


 


Type of Loan or Borrowing - see Section 2.2.1.  The types of Loans or borrowings under this
Agreement are as follows:  Base Rate
Loans or borrowings and Eurodollar Loans or borrowings.


 


Unmatured Event of Default means any event that, if it continues
uncured, will, with lapse of time or notice or both, constitute an Event of
Default.


 


11

















 


Utilization Fee - see Section 5.3.


 


Welfare Plan means a “welfare plan”, as such term is
defined in Section 3(1) of ERISA.


 


1.2  Other
Interpretive Provisions. 
(a)  The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.


 


(b)           Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.


 


(c)           (i)            The term “including” is not limiting and
means “including without limitation.”


 


(ii)           In the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including”; the words “to” and
“until” each mean “to but excluding”, and the word “through” means “to and
including.”


 


(iii)          Unless otherwise specified, any reference herein to a particular time
of day means such time in Chicago, Illinois.


 


(d)           Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any
statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such statute or regulation.


 


(e)           This Agreement and the other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar
matters.  All such limitations, tests
and measurements are cumulative and shall each be performed in accordance with
their terms.


 


(f)            This Agreement and the other Loan Documents
are the result of negotiations among and have been reviewed by counsel to the
Administrative Agent, the Company, the Banks and the other parties thereto and
are the products of all parties. 
Accordingly, they shall not be construed against the Administrative
Agent or the Banks merely because of the Administrative Agent’s or Banks’
involvement in their preparation.


 


SECTION 2  COMMITMENTS OF THE BANKS; BORROWING,
CONVERSION AND LETTER OF CREDIT PROCEDURES.


 


2.1  Commitments.  On and subject to the terms and conditions
of this Agreement, each of the Banks, severally and for itself alone, agrees to
make loans to, and to issue or participate in the issuance of letters of credit
for the account of, the Company as follows:


 


2.1.1  Revolving Loans.  Each Bank will make loans on a revolving
basis (each such loan, a “Revolving Loan”) from time to time before the
Termination Date in such Bank’s Percentage of such aggregate amounts as the
Company may from time to time request from all


 


12

















 


Banks; provided that
the Total Outstandings shall not at any time exceed the Commitment Amount.


 


2.1.2  L/C Commitment.  (a) The Issuing Bank will issue standby
letters of credit containing such terms and conditions as are permitted by this
Agreement and are reasonably satisfactory to the Issuing Bank and the Company
(each, a “Letter of Credit”), at the request of and for the account of
the Company (or jointly for the account of the Company and any Subsidiary) from
time to time before the Termination Date and (b) as more fully set forth in Section 2.3.5,
each Bank agrees to purchase a participation in each such Letter of Credit; provided
that (i) the aggregate Stated Amount of all Letters of Credit shall not at any
time exceed the $100,000,000 and (ii) the Total Outstandings will not at any
time exceed the Commitment Amount.


 


2.1.3  Swing Line Loans.  Subject to the terms and conditions of this
Agreement, the Swing Line Bank may from time to time, in its discretion, make
loans to the Company (collectively the “Swing Line Loans” and
individually each a “Swing Line Loan”) in accordance with this Section 2.1.3
and Section 2.4 in an aggregate amount not at any time exceeding
$5,000,000; provided that the Total Outstandings shall not at any time
exceed the Commitment Amount.  Amounts
borrowed under this Section 2.1.3 may be borrowed, repaid and
(subject to the agreement of the Swing Line Bank) reborrowed until the
Termination Date.


 


2.2  Loan Procedures.


 


2.2.1  Various Types
of Loans.  Each Loan shall be
either a Base Rate Loan or a Eurodollar Loan (each a “type” of Loan), as
the Company shall specify in the related notice of borrowing or conversion
pursuant to Section 2.2.2 or 2.2.3.  Eurodollar Loans having the same Interest
Period are sometimes called a “Group” or collectively “Groups”.  Base Rate Loans and Eurodollar Loans may be
outstanding at the same time, provided that not more than eight
different Groups of Eurodollar Loans shall be outstanding at any one time.  Each borrowing of Revolving Loans shall be
in an aggregate principal amount of $1,000,000 or a higher integral multiple of
$500,000; provided that the aggregate principal amount of each Group of
Eurodollar Loans shall at all times (including after giving effect to any
conversion or continuation) be an integral multiple of $1,000,000.  All borrowings, conversions and repayments
of Loans shall be effected so that each Bank will have a pro rata share
(according to its Percentage) of all types and Groups of Loans.


 


2.2.2  Borrowing Procedures for Revolving
Loans.  The Company shall give
written notice or telephonic notice (followed promptly by written confirmation
thereof) to the Administrative Agent of each proposed borrowing of Revolving
Loans not later than (a) in the case of a Base Rate borrowing, 12:00 noon on
the proposed date of such borrowing, and (b) in the case of a Eurodollar
borrowing, 12:00 noon at least three Business Days prior to the proposed date
of such borrowing.  Each such notice
shall be effective upon receipt by the Administrative Agent, shall be irrevocable,
and shall specify the date (which shall be a Business Day), amount and type of
borrowing and, in the case of a Eurodollar borrowing, the initial Interest
Period therefor.  Promptly upon receipt
of such notice, the Administrative Agent shall advise each Bank


 


13

















 


thereof.  Not later than 2:00 p.m. on the date of a
proposed borrowing, each Bank shall provide the Administrative Agent at the
office specified by the Administrative Agent with immediately available funds
covering such Bank’s Percentage of such borrowing and, so long as the
Administrative Agent has not received written notice that the conditions
precedent set forth in Section 11 with respect to such borrowing
have not been satisfied, the Administrative Agent shall pay over the requested
amount to the Company on the requested borrowing date.


 


2.2.3  Conversion
and Continuation Procedures. 
(a) Subject to the provisions of Section 2.2.1, the Company
may, upon irrevocable written notice to the Administrative Agent in accordance
with clause (b) below:


 


(i)            elect, as of any Business Day, to convert any
outstanding Revolving Loan into a Revolving Loan of the other type; or


 


(ii)           elect, as of the last day of the applicable Interest Period, to
continue any Group of Eurodollar Loans having an Interest Period expiring on
such day (or any part thereof in an aggregate amount not less than $1,000,000
or an integral multiple thereof) for a new Interest Period.


 


(b)           The Company shall give written or telephonic notice (followed promptly
by written confirmation thereof) to the Administrative Agent of each proposed
conversion or continuation not later than (i) in the case of conversion into
Base Rate Loans, 12:00 noon on the proposed date of such conversion; and (ii)
in the case of a conversion into or continuation of Eurodollar Loans, 12:00
noon at least three Business Days prior to the proposed date of such conversion
or continuation, specifying in each case:


 


(1)           the proposed date of conversion or continuation;


 


(2)           the aggregate amount of Loans to be converted or continued;


 


(3)           the type of Loans resulting from the proposed conversion or
continuation; and


 


(4)           in the case of conversion into, or continuation of, Eurodollar Loans,
the duration of the requested Interest Period therefor.


 


(c)           If upon expiration of any Interest Period applicable to Eurodollar
Loans, the Company has failed to select timely a new Interest Period to be
applicable to such Eurodollar Loans, such Eurodollar Loans shall convert into
Base Rate Loans effective on the last day of such Interest Period.


 


(d)           The Administrative Agent will promptly notify each Bank of its receipt
of a notice of conversion or continuation pursuant to this Section 2.4
or, if no timely notice is provided by the Company, of the details of any
automatic conversion.


 


14

















 


(e)           Unless the Required Banks otherwise consent, during the existence of
any Event of Default or Unmatured Event of Default, the Company may not elect
to have a Base Rate Loan converted into or continued as a Eurodollar Loan.


 


2.3  Letter
of Credit Procedures.


 


2.3.1  Letter
of Credit Applications.  The
Company shall give notice to the Administrative Agent and the Issuing Bank of
the proposed issuance of each Letter of Credit on a Business Day which is at
least three Business Days (or such lesser number of days as the Administrative
Agent and the Issuing Bank shall agree in any particular instance) prior to the
proposed date of issuance of such Letter of Credit.  Each such notice shall be accompanied by a Letter of Credit
Application, duly executed by the Company (together with any Subsidiary for the
account of which the related Letter of Credit is to be issued) and in all
respects satisfactory to the Administrative Agent and the Issuing Bank, together
with such other documentation as the Administrative Agent or the Issuing Bank
may reasonably request in support thereof, it being understood that each Letter
of Credit Application shall specify, among other things, the date on which the
proposed Letter of Credit is to be issued, the expiration date of such Letter
of Credit (which shall not be later than the Termination Date) and whether such
Letter of Credit is to be transferable in whole or in part.  So long as the Issuing Bank has not received
written notice that the conditions precedent set forth in Section 11
with respect to the issuance of such Letter of Credit have not been satisfied,
the Issuing Bank shall issue such Letter of Credit on the requested issuance
date.  The Issuing Bank shall promptly
advise the Administrative Agent of the issuance of each Letter of Credit by the
Issuing Bank and of any amendment thereto, extension thereof or event or
circumstance changing the amount available for drawing thereunder.


 


2.3.2  Participations
in Letters of Credit. 
Concurrently with the issuance of each Letter of Credit (or, in the case
of any Existing Letter of Credit, concurrently with the effectiveness hereof),
the Issuing Bank shall be deemed to have sold and transferred to each other
Bank, and each other Bank shall be deemed irrevocably and unconditionally to
have purchased and received from the Issuing Bank, without recourse or
warranty, an undivided interest and participation, to the extent of such other
Bank’s Percentage, in such Letter of Credit and the Company’s reimbursement
obligations with respect thereto.  For
the purposes of this Agreement, the unparticipated portion of each Letter of
Credit shall be deemed to be the Issuing Bank’s “participation” therein.  The Issuing Bank hereby agrees, upon request
of the Administrative Agent or any Bank, to deliver to such Bank a list of all
outstanding Letters of Credit issued by the Issuing Bank, together with such
information related thereto as such Bank may reasonably request.


 


2.3.3  Reimbursement
Obligations.  The Company hereby
unconditionally and irrevocably agrees to reimburse the Issuing Bank for each
payment or disbursement made by the Issuing Bank under any Letter of Credit
honoring any demand for payment made by the beneficiary thereunder, in each
case on the date that such payment or disbursement is made.  Any amount not reimbursed on the date of
such payment or disbursement shall bear interest from the date of such payment
or disbursement to the date that the Issuing Bank is reimbursed by the Company
therefor, payable on demand, at a rate per annum equal to the Base Rate from
time to


 


15

















 


time in effect plus
the Base Rate Margin from time to time in effect plus, beginning on the
third Business Day after receipt of notice from the Issuing Bank of such
payment or disbursement, 2%.  The
Issuing Bank shall notify the Company and the Administrative Agent whenever any
demand for payment is made under any Letter of Credit by the beneficiary
thereunder; provided that the failure of the Issuing Bank to so notify
the Company shall not affect the rights of the Issuing Bank or the Banks in any
manner whatsoever.


 


2.3.4  Limitation
on Obligations of Issuing Bank. 
In determining whether to pay under any Letter of Credit, the Issuing
Bank shall not have any obligation to the Company or any Bank other than to
confirm that any documents required to be delivered under such Letter of Credit
appear to have been delivered and appear to comply on their face with the requirements
of such Letter of Credit.  Any action
taken or omitted to be taken by the Issuing Bank under or in connection with
any Letter of Credit, if taken or omitted in the absence of gross negligence
and willful misconduct, shall not impose upon the Issuing Bank any liability to
the Company or any Bank and shall not reduce or impair the Company’s
reimbursement obligations set forth in Section 2.3.3 or the
obligations of the Banks pursuant to Section 2.3.5.


 


2.3.5  Funding
by Banks to Issuing Bank.  If the
Issuing Bank makes any payment or disbursement under any Letter of Credit and
the Company has not reimbursed the Issuing Bank in full for such payment or
disbursement by 12:00 noon on the date of such payment or disbursement, or if
any reimbursement received by the Issuing Bank from the Company is or must be
returned or rescinded upon or during any bankruptcy or reorganization of the
Company or otherwise, each other Bank shall be obligated to pay to the
Administrative Agent for the account of the Issuing Bank, in full or partial
payment of the purchase price of its participation in such Letter of Credit,
its pro rata share (according to its Percentage) of such payment or
disbursement (but no such payment shall diminish the obligations of the Company
under Section 2.3.3), and upon notice from the Issuing Bank, the
Administrative Agent shall promptly notify each other Bank thereof.  Each other Bank irrevocably and
unconditionally agrees to so pay to the Administrative Agent in immediately
available funds for the Issuing Bank’s account the amount of such other Bank’s
Percentage of such payment or disbursement. 
If and to the extent any Bank shall not have made such amount available
to the Administrative Agent by 2:00 p.m. on the Business Day on which such Bank
receives notice from the Administrative Agent of such payment or disbursement
(it being understood that any such notice received after noon on any Business
Day shall be deemed to have been received on the next following Business Day),
such Bank agrees to pay interest on such amount to the Administrative Agent for
the Issuing Bank’s account forthwith on demand for each day from the date such
amount was to have been delivered to the Administrative Agent to the date such
amount is paid, at a rate per annum equal to (a) for the first three days after
demand, the Federal Funds Rate from time to time in effect and (b) thereafter,
the Base Rate from time to time in effect. 
Any Bank’s failure to make available to the Administrative Agent its
Percentage of any such payment or disbursement shall not relieve any other Bank
of its obligation hereunder to make available to the Administrative Agent such
other Bank’s Percentage of such payment, but no Bank shall be responsible for
the failure of any other Bank to make available to the Administrative Agent
such other Bank’s Percentage of any such payment or disbursement.


 


16

















 


2.4  Swing Line Loans.


 


2.4.1  Swing Line Loan
Procedures.  The Company shall give
written or telephonic (followed promptly by written confirmation thereof)
notice to the Administrative Agent (which shall promptly inform the Swing Line
Bank) of each proposed Swing Line Loan not later than 2:00 p.m. on the proposed
date of such Swing Line Loan.  Each such
notice shall be effective upon receipt by the Administrative Agent and shall
specify the date and amount of such Swing Line Loan, which shall be $100,000 or
an integral multiple thereof.  So long
as the Swing Line Bank has not received written notice that the conditions
precedent set forth in Section 11 with respect to the making of
such Swing Line Loan have not been satisfied, the Swing Line Bank may make such
Swing Line Loan on the requested borrowing date.  Concurrently with the making of any Swing Line Loan, the Swing
Line Bank shall be deemed to have sold and transferred, and each other Bank
shall be deemed to have purchased and received from the Swing Line Bank an
undivided interest and participation to the extent of such other Bank’s
Percentage in such Swing Line Loan (but such participation shall remain
unfunded until required to be funded pursuant to Section 2.4.2).


 


2.4.2  Refunding of,
or Funding of Participations in, Swing Line Loans.  The Swing Line Bank may at any time, in its
sole discretion, on behalf of the Company (which hereby irrevocably authorizes
the Swing Line Bank to act on its behalf) deliver a notice to the
Administrative Agent requesting that each Bank (including the Swing Line Bank
in its individual capacity) make a Revolving Loan (which shall be a Base Rate
Loan) in such Bank’s Percentage of the aggregate amount of Swing Line Loans
outstanding on such date for the purpose of repaying all Swing Line Loans (and,
upon receipt of the proceeds of such Revolving Loans, the Administrative Agent
shall apply such proceeds to repay Swing Line Loans); provided that if
the conditions precedent to a borrowing of Revolving Loans are not then
satisfied or for any other reason the Banks may not then make Revolving Loans,
then instead of making Revolving Loans each Bank (other than the Swing Line
Bank) shall become immediately obligated to fund its participation in all
outstanding Swing Line Loans and shall pay to the Administrative Agent for the
account of the Swing Line Bank an amount equal to such Bank’s Percentage of
such Swing Line Loans.  If and to the
extent any Bank shall not have made such amount available to the Administrative
Agent by 2:00 p.m. on the Business Day on which such Bank receives notice from
the Administrative Agent of its obligation to fund its participation in Swing
Line Loans (it being understood that any such notice received after 12:00 noon
on any Business Day shall be deemed to have been received on the next following
Business Day), such Bank agrees to pay interest on such amount to the
Administrative Agent for the Swing Line Bank’s account forthwith on demand for
each day from the date such amount was to have been delivered to the
Administrative Agent to the date such amount is paid, at a rate per annum equal
to (a) for the first three days after demand, the Federal Funds Rate from time
to time in effect and (b) thereafter, the Base Rate from time to time in
effect.  Any Bank’s failure to make
available to the Administrative Agent its Percentage of the amount of all
outstanding Swing Line Loans shall not relieve any other Bank of its obligation
hereunder to make available to the Administrative Agent such other Bank’s
Percentage of such amount, but no Bank shall be responsible for the failure of
any other Bank to make available to the Administrative Agent such other Bank’s
Percentage of any such amount.


 


17

















 


2.4.3  Repayment
of Participations.  Upon (and
only upon) receipt by the Administrative Agent for the account of the Swing Line
Bank of immediately available funds from or on behalf of the Company (a) in
reimbursement of principal of any Swing Line Loan with respect to which a Bank
has paid the Administrative Agent for the account of the Swing Line Bank the
amount of such Bank’s participation therein or (b) in payment of any interest
on any such Swing Line Loan, the Administrative Agent will pay to such Bank its
pro rata share (according to its Percentage) of such principal or, for the
period during which such participation was funded, interest, as the case may be
(it being understood that the Swing Line Bank shall receive any amount to which
a Bank is not entitled because it has not funded, or did not timely fund, its
participation in such Swing Line Loan, except, if such Bank subsequently funds
such participation, to the extent that such Bank has paid interest to the Swing
Line Bank in respect thereof pursuant to Section 2.4.2).


 


2.4.4  Participation Obligations
Unconditional.  (a)  Each Bank’s obligation to make available to
the Administrative Agent for the account of the Swing Line Bank the amount of
its participation interest in all Swing Line Loans as provided in Section 2.4.3
shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense or
other right which such Bank may have against the Swing Line Bank or any other
Person, (ii) the occurrence or continuance of an Event of Default or Unmatured
Event of Default, (iii) any adverse change in the condition (financial or
otherwise) of the Company or any Subsidiary thereof, (iv) any termination of
the Commitments or (v) any other circumstance, happening or event whatsoever.


 


(b)           Notwithstanding the provisions of clause (a) above, no Bank
shall be required to purchase a participation interest in any Swing Line Loan
if, prior to the making by the Swing Line Bank of such Swing Line Loan, the
Swing Line Bank received written notice specifying that one or more of the
conditions precedent to the making of such Swing Line Loan were not satisfied
and, in fact, such conditions precedent were not satisfied at the time of the
making of such Swing Line Loan.


 


2.5  Commitments
Several.  The failure of any
Bank to make a requested Loan on any date shall not relieve any other Bank of
its obligation (if any) to make a Loan on such date, but no Bank shall be
responsible for the failure of any other Bank to make any Loan to be made by
such other Bank.


 


2.6  Certain
Conditions.  Notwithstanding any
other provision of this Agreement, no Bank shall have an obligation to make any
Loan, or to permit the continuation of or any conversion into any Eurodollar
Loan, and the Issuing Bank shall not have any obligation to issue any Letter of
Credit, if an Event of Default or Unmatured Event of Default exists.


 


SECTION 3  NOTES EVIDENCING LOANS.


 


3.1  Notes.  The Loans of each Bank shall be evidenced by
a promissory note (each a “Note”) payable to the order of such Bank
substantially in the form set forth in Exhibit A.


 


18

















 


3.2  Recordkeeping.  Each Bank shall record in its records, or at
its option on the schedule attached to its Note, the date and amount of
each Loan made by such Bank, each repayment or conversion thereof and, in the
case of each Eurodollar Loan, the dates on which each Interest Period for such
Loan shall begin and end.  The aggregate
unpaid principal amount so recorded shall be rebuttable presumptive evidence of
the principal amount owing and unpaid on such Note.  The failure to so record any such amount or any error in so
recording any such amount shall not, however, limit or otherwise affect the
obligations of the Company hereunder or under any Note to repay the principal
amount of the Loans evidenced by such Note together with all interest accruing
thereon.


 


SECTION 4  INTEREST.


 


4.1  Interest Rates.  The Company promises to pay interest on the
unpaid principal amount of each Loan for the period commencing on the date of
such Loan until such Loan is paid in full as follows:


 


(a)           in the case of a Revolving Loan, (i) at all times while such Loan is a
Base Rate Loan, at a rate per annum equal to the sum of the Base Rate from time
to time in effect plus the Base Rate Margin from time to time in effect; and
(ii) at all times while such Loan is a Eurodollar Loan, at a rate per annum
equal to the sum of the Eurodollar Rate (Adjusted) applicable to each Interest
Period for such Loan plus the Eurodollar Margin from time to time in effect;
and


 


(b)           in the case of a Swing Line Loan, at a rate per annum equal to the Base
Rate from time to time in effect plus the Base Rate Margin; provided
that upon request of the Required Banks at any time (and for so long) an Event
of Default exists, the interest rate applicable to each Loan shall be increased
by 2%.


 


4.2  Interest
Payment Dates.  Accrued interest
on each Base Rate Loan and each Swing Line Loan shall be payable in arrears on
the last Business Day of each calendar month and at maturity.  Accrued interest on each Eurodollar Loan
shall be payable on the last day of each Interest Period relating to such Loan
(and, in the case of a Eurodollar Loan with a six-month Interest Period, on the
three-month anniversary of the first day of such Interest Period) and at
maturity.  After maturity, accrued
interest on all Loans shall be payable on demand.


 


4.3  Setting
and Notice of Eurodollar Rates. 
The applicable Eurodollar Rate for each Interest Period shall be
determined by the Administrative Agent, and notice thereof shall be given by
the Administrative Agent promptly to the Company and each Bank.  Each determination of the applicable
Eurodollar Rate by the Administrative Agent shall be conclusive and binding
upon the parties hereto, in the absence of demonstrable error.  The Administrative Agent shall, upon written
request of the Company or any Bank, deliver to the Company or such Bank a
statement showing the computations used by the Administrative Agent in
determining any applicable Eurodollar Rate hereunder.


 


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4.4  Computation
of Interest.  All determinations
of interest for Base Rate Loans and Swing Line Loans when the Base Rate is
determined by the Prime Rate shall be made on the basis of a year of 365 or 366
days, as the case may be, and the actual number of days elapsed.  All other computations of interest shall be
computed for the actual number of days elapsed on the basis of a year of 360
days.  The applicable interest rate for
each Base Rate Loan and each Swing Line Loan shall change simultaneously with
each change in the Base Rate.


 


SECTION 5  FEES.


 


5.1  Facility Fee.  The Company agrees to pay to the
Administrative Agent for the account of the Banks pro rata according to their
respective Percentages a facility fee at a rate per annum equal to the Facility
Fee Rate for the period from the Effective Date to the Termination Date (and,
if applicable, thereafter until the Total Outstandings are zero) on the
Commitment Amount (or, if the Commitments have terminated, on the Total
Outstandings).  Such facility fee shall
be payable in arrears on the last Business Day of each calendar quarter and on
the Termination Date (and, if applicable, thereafter on demand).


 


5.2  Letter of
Credit Fees.  (a)  The Company agrees to pay to the
Administrative Agent, for the account of the Banks pro rata according to their
respective Percentages, a letter of credit fee for each Letter of Credit at a
rate per annum equal to the LC Fee Rate; provided that upon the request
of the Required Banks at any time and for as long as an Event of Default
exists, the rate per annum applicable to each Letter of Credit shall be
increased by 2%.  Such letter of credit
fee shall be payable in arrears on the last Business Day of each calendar
quarter and on the Termination Date (and, if applicable, thereafter on demand)
for the period from the date of the issuance of each Letter of Credit to the
date such payment is due or, if earlier, the date on which such Letter of
Credit expired or was terminated.


 


(b)           The Company agrees to pay the Issuing Bank, for its own account, a
fronting fee for each Letter of Credit in an amount separately agreed to
between the Company and the Issuing Bank.


 


(c)           In addition, with respect to each Letter of Credit, the Company agrees
to pay to the Issuing Bank, for its own account, such fees and expenses as the
Issuing Bank customarily requires in connection with the issuance, negotiation,
processing and/or administration of letters of credit in similar situations.


 


5.3  Utilization Fee.  The Company agrees to pay to the
Administrative Agent, for the account of the Banks according to their
respective Percentages, a utilization fee of 0.125% for each day on which the
Total Outstandings exceed 50% of the Commitment Amount.  Such utilization fee shall be payable in
arrears on the last Business Day of each calendar quarter and on the
Termination Date.


 


5.4  Administrative
Agent’s and Arrangers’ Fees. 
The Company agrees to pay to the Administrative Agent and each Arranger
such administrative agent’s fees and arrangement fees, respectively, as are
mutually agreed to from time to time by the applicable parties.


 


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5.5  Computation of
Fees.  Fees payable pursuant to Sections
5.1, 5.2(a) and 5.3 shall be computed for the actual number
of days elapsed on the basis of a 360-day year.


 


SECTION 6  CHANGES IN THE COMMITMENT AMOUNT;
PREPAYMENTS.


 


6.1  Changes
in the Commitment Amount.


 


6.1.1  Optional
Increase in the Commitment Amount. 
The Company may from time to time after the Effective Date so long as no
Event of Default or Unmatured Event of Default exists, by means of a letter to
the Administrative Agent substantially in the form of Exhibit G, request
that the Commitment Amount be increased by (a) increasing the Commitment of one
or more Banks which have agreed to such increase and/or (b) adding one or more
commercial banks or other Persons as a party hereto with a Commitment in an
amount agreed to by any such commercial bank or other Person; provided
that (i) no commercial bank or other Person shall be added as a party hereto
without the written consent of the Administrative Agent (which shall not be
unreasonably withheld) and (ii) in no event shall the aggregate amount of all
increases in the Commitment Amount pursuant to this Section 6.1.1
exceed $50,000,000 without the written consent of all Banks.  Any increase in the Commitment Amount
pursuant to this Section 6.1.1 shall be in the amount of $5,000,000
or a higher integral multiple thereof and shall be effective three Business Days
after the date on which the Administrative Agent has received and accepted the
applicable increase letter in the form of Annex 1 to Exhibit G (in the
case of an increase in the Commitment of an existing Bank) or assumption letter
in the form of Annex 2 to Exhibit G (in the case of the addition of a
commercial bank or other Person as a new Bank). The Administrative Agent shall
promptly notify the Company and the Banks of any increase in the Commitment
Amount pursuant to this Section 6.1.1 and of the Commitment and
Percentage of each Bank after giving effect thereto.  The Company acknowledges that, in order to maintain Loans in
accordance with each Bank’s Percentage, a reallocation of the Commitments as a
result of a non-pro-rata increase in the Commitment Amount may require
prepayment of all or portions of certain Loans on the date of such increase
(and any such prepayment shall be subject to the provisions of Section 8.4).


 


6.1.2  Voluntary
Reductions of the Commitment Amount. 
The Company may from time to time on at least five Business Days’ prior
written notice received by the Administrative Agent (which shall promptly
advise each Bank thereof) permanently reduce the Commitment Amount to an amount
not less than the Total Outstandings. 
Any such reduction shall be in an amount equal to an integral multiple
of $5,000,000.  The Company may at any
time on like notice terminate the Commitments upon payment in full of all Loans
and all other obligations of the Company hereunder and Cash Collateralization
in full of all contingent obligations with respect to Letters of Credit.  All reductions of the Commitment Amount
shall reduce the amounts of the Commitments of the Banks pro rata according to
their respective Percentages.


 


6.2  Voluntary
Prepayments.  The Company may
from time to time prepay the Loans in whole or in part, provided that
the Company shall give the Administrative Agent (which shall promptly advise
each Bank) notice thereof not later than 12:00 noon on the day of such
prepayment (which shall be a Business Day), specifying the Loans to be prepaid
and the date and


 


21

















 


amount of prepayment.  Each partial prepayment shall be in a
principal amount of $500,000 or an integral multiple thereof (or, in the case
of Swing Line Loans, $100,000 or an integral multiple thereof).  After giving effect to any prepayment, the
aggregate principal amount of each Group of Eurodollar Loans shall be an
integral multiple of $1,000,000.  All
prepayments shall be applied to prepay the Loans of the Banks pro rata
according to their respective Percentages. 
Any prepayment of a Eurodollar Loan on a day other than the last day of
an Interest Period therefor shall include interest on the principal amount
being repaid and shall be subject to Section 8.4.


 


SECTION 7  MAKING AND PRORATION OF PAYMENTS; SETOFF;
TAXES.


 


7.1  Making of
Payments.  All payments of
principal of or interest on the Notes, and of all fees, shall be made by the
Company to the Administrative Agent in immediately available funds at the
office specified by the Administrative Agent not later than noon on the date
due; and funds received after that hour shall be deemed to have been received
by the Administrative Agent on the next following Business Day.  The Administrative Agent shall promptly
remit to each Bank its share of all such payments received in collected funds
by the Administrative Agent for the account of such Bank.  All payments under Section 8.1
shall be made by the Company directly to the Bank entitled thereto.


 


7.2  Application
of Certain Payments.  Each
payment of principal shall be applied to such Loans as the Company shall direct
by notice to be received by the Administrative Agent on or before the date of
such payment or, in the absence of such notice, as the Administrative Agent
shall determine in its discretion. 
Concurrently with each remittance to any Bank of its share of any such
payment, the Administrative Agent shall advise such Bank as to the application
of such payment.


 


7.3  Due Date
Extension.  If any payment of
principal of or interest on the Loans, or of any fees, falls due on a day which
is not a Business Day, then such due date shall be extended to the immediately
following Business Day (unless, in the case of a Eurodollar Loan, such immediately
following Business Day is the first Business Day of a calendar month, in which
case such date shall be the immediately preceding Business Day) and, in the
case of principal, additional interest shall accrue and be payable for the
period of any such extension.


 


7.4  Setoff.  The Company agrees that the Administrative
Agent and each Bank have all rights of set-off and bankers’ lien provided by
applicable law, and in addition thereto, the Company agrees that at any time
any Event of Default exists, the Administrative Agent and each Bank may apply
to the payment of any obligations of the Company hereunder, whether or not then
due, any and all balances, credits, deposits, accounts or moneys of the Company
then or thereafter with the Administrative Agent or such Bank.


 


7.5  Proration of
Payments.  If any Bank shall
obtain any payment or other recovery (whether voluntary, involuntary, by
application of offset or otherwise, but excluding any payment of interest to
the Issuing Bank, any payment to the Swing Line Bank with respect to a Swing
Line Loan payment pursuant to Section 8.7 or 14.9) on
account of principal of or interest on any Loan (or on account of its
participation in any Letter of Credit) in excess of its pro rata


 


22

















 


share of payments and other
recoveries obtained by all Banks on account of principal of and interest on
Loans (or such participation) then held by them, such Bank shall purchase from
the other Banks such participation in the Loans (or sub-participation in
Letters of Credit) held by them as shall be necessary to cause such purchasing
Bank to share the excess payment or other recovery ratably with each of them; provided
that if all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Bank, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery.


 


7.6  Taxes.  (a) All payments of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Bank’s net
income or receipts (all non-excluded items being called “Taxes”).  If any withholding or deduction from any
payment to be made by the Company hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then the Company will:


 


(i)            pay directly to the relevant authority the
full amount required to be so withheld or deducted;


 


(ii)           promptly forward to the Administrative Agent an official receipt or
other documentation satisfactory to the Administrative Agent evidencing such
payment to such authority; and


 


(iii)          (except to the extent such withholding or deduction would not be
required if such Bank’s Exemption Representation were true) pay to the
Administrative Agent for the account of the Banks such additional amount or
amounts as is necessary to ensure that the net amount actually received by each
Bank will equal the full amount such Bank would have received had no such
withholding or deduction been required. Moreover, if any Taxes are directly
asserted against the Administrative Agent or any Bank with respect to any
payment received by the Administrative Agent or such Bank hereunder, the
Administrative Agent or such Bank may pay such Taxes and the Company will (except
to the extent such Taxes are payable by a Bank and would not have been payable
if such Bank’s Exemption Representation were true) promptly pay such additional
amounts (including any penalty, interest and expense) as is necessary in order
that the net amount received by such Person after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
Person would have received had such Taxes not been asserted.


 


23

















 


(b)           If the Company fails to pay any Taxes when due to the appropriate
taxing authority or fails to promptly remit to the Administrative Agent, for
the account of the respective Banks, the required receipts or other required
documentary evidence, the Company shall indemnify the Banks for any incremental
Taxes, interest or penalties that may become payable by any Bank as a result of
any such failure.  For purposes of this Section 7.6,
a distribution hereunder by the Administrative Agent or any Bank to or for the
account of any Bank shall be deemed a payment by the Company.


 


(c)           Each Bank represents and warrants (such Bank’s “Exemption
Representation”) to the Company and the Administrative Agent that, as of
the date of this Agreement (or, in the case of an Assignee, the date it becomes
a party hereto), it is entitled to receive payments hereunder without any
deduction or withholding for or on account of any Taxes imposed by the United
States of America or any political subdivision or taxing authority thereof.


 


(d)           Upon the request from time to time of the Company or the Administrative
Agent and in any event before the expiration of any previously-delivered form,
each Bank that is organized under the laws of a jurisdiction other than the
United States of America shall execute and deliver to the Company and the
Administrative Agent one or more (as the Company or the Administrative Agent
may reasonably request) United States Internal Revenue Service Forms W-8ECI or
Forms W-8BEN or such other forms or documents, appropriately completed, as may
be applicable to establish the extent, if any, to which a payment to such Bank
is exempt from withholding or deduction of Taxes.


 


(e)           If, and to the extent that, any Bank shall obtain a credit, relief or
remission for, or repayment of, any Taxes indemnified or paid by the Company
pursuant to this Section 7.6, such Bank agrees to promptly notify
the Company thereof and thereupon enter into negotiations in good faith with
the Company to determine the basis on which an equitable reimbursement of such
Taxes can be made to the Company.


 


SECTION 8 
INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS.


 


8.1  Increased Costs.  (a) 
If, after the date hereof, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or any Eurodollar Office of such Bank) with any request
or directive (whether or not having the force of law) of any such authority,
central bank or comparable agency


 


(A)          shall subject any Bank (or any Eurodollar Office of such Bank) to any
tax, duty or other charge with respect to its Eurodollar Loans, its Note or its
obligation to make Eurodollar Loans, or shall change the basis of taxation of
payments to any Bank of the principal of or interest on its Eurodollar Loans or
any other amounts due under this Agreement in respect of its Eurodollar Loans
or its obligation to make Eurodollar Loans (except for changes in the rate of
tax on the overall net income of such Bank or its Eurodollar Office imposed by
the jurisdiction in which such Bank’s principal executive office or Eurodollar
Office is located); or


 


24

















 


(B)           shall impose, modify or deem applicable any reserve (including any
reserve imposed by the FRB, but excluding any reserve included in the
determination of interest rates pursuant to Section 4), special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by any Bank (or any Eurodollar Office of such
Bank); or


 


(C)           shall impose on any Bank (or its Eurodollar Office) any other condition
affecting its Eurodollar Loans, its Note or its obligation to make Eurodollar
Loans; and the result of any of the foregoing is to increase the cost to (or in
the case of Regulation D of the FRB, to impose a cost on) such Bank (or any
Eurodollar Office of such Bank) of making or maintaining any Eurodollar Loan,
or to reduce the amount of any sum received or receivable by such Bank (or its
Eurodollar Office) under this Agreement or under its Note with respect thereto,
then within 10 days after demand by such Bank (which demand shall be
accompanied by a statement setting forth the basis for such demand and a
calculation of the amount thereof in reasonable detail, a copy of which shall
be furnished to the Administrative Agent), the Company shall pay directly to
such Bank such additional amount as will compensate such Bank for such
increased cost or such reduction.


 


(D)          If any Bank shall reasonably determine that the adoption or phase-in of
any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Bank or any
Person controlling such Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank’s or such controlling Person’s capital as a
consequence of such Bank’s obligations hereunder or under any Letter of Credit
to a level below that which such Bank or such controlling Person could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank’s or such controlling Person’s policies with respect to capital
adequacy) by an amount deemed by such Bank or such controlling Person to be
material, then from time to time, within 10 days after demand by such Bank
(which demand shall be accompanied by a statement setting forth the basis for
such demand and a calculation of the amount thereof in reasonable detail, a
copy of which shall be furnished to the Administrative Agent), the Company
shall pay to such Bank such additional amount or amounts as will compensate
such Bank or such controlling Person for such reduction.


 


(E)           Notwithstanding the foregoing provisions of this Section 8.1,
if any Bank fails to notify the Company of any event or circumstance which will
entitle such Bank to compensation pursuant to


 


25

















 


this Section 8.1
within 180 days after such Bank obtains knowledge of such event or
circumstance, then such Bank shall not be entitled to compensation from the
Company for any amount arising prior to the date which is 180 days before the
date on which such Bank notifies the Company of such event or circumstance.


 


8.2  Basis
for Determining Interest Rate Inadequate or Unfair.  If, prior to the first day of any Interest
Period:


 


(a)           the Administrative Agent reasonably determines (which determination, if
made in good faith, shall be binding and conclusive on the Company) that
deposits in Dollars (in the applicable amounts) are not being offered to the
Administrative Agent in the interbank eurodollar market for such Interest
Period, or that by reason of circumstances affecting the interbank eurodollar
market adequate and reasonable means do not exist for ascertaining the
applicable Eurodollar Rate; or


 


(b)           Banks having an aggregate Percentage of 40% or more advise the
Administrative Agent that the Eurodollar Rate (Adjusted) as determined by the
Administrative Agent will not adequately and fairly reflect the cost to such
Banks of maintaining or funding such Eurodollar Loans for such Interest Period
(taking into account any amount to which such Banks may be entitled under Section 8.1)
or that the making or funding of Eurodollar Loans has become impracticable as a
result of an event occurring after the date of this Agreement which in the
opinion of such Banks materially affects such Loans;


 


then the Administrative Agent shall promptly
notify the other parties thereof and, so long as such circumstances shall
continue, (i) no Bank shall be under any obligation to make or convert into
Eurodollar Loans and (ii) on the last day of the current Interest Period for
each Eurodollar Loan, such Loan shall, unless then repaid in full,
automatically convert to a Base Rate Loan.


 


8.3  Changes
in Law Rendering Eurodollar Loans Unlawful.  In the event that any change in (including the adoption of any
new) applicable laws or regulations, or any change in the interpretation of
applicable laws or regulations by any governmental or other regulatory body
charged with the administration thereof, should make it (or in the good faith
judgment of any Bank cause a substantial question as to whether it is) unlawful
for any Bank to make, maintain or fund Eurodollar Loans, then such Bank shall
promptly notify each of the other parties hereto and, so long as such
circumstances shall continue, (a) such Bank shall have no obligation to make or
convert into Eurodollar Loans (but shall make Base Rate Loans concurrently with
the making of or conversion into Eurodollar Loans by the Banks which are not so
affected, in each case in an amount equal to such Bank’s pro rata share of all
Eurodollar Loans which would be made or converted into at such time in the
absence of such circumstances) and (b) on the last day of the current Interest
Period for each Eurodollar Loan of such Bank (or, in any event, on such earlier
date as may be required by the relevant law, regulation or interpretation),
such Eurodollar Loan shall, unless then repaid in full, automatically convert
to a Base Rate Loan.  Each Base Rate
Loan made by a Bank which, but for the circumstances described in the foregoing
sentence, would be a Eurodollar Loan (an “Affected Loan”) shall remain
outstanding for the same period


 


26

















 


as the Group of Eurodollar
Loans of which such Affected Loan would be a part absent such circumstances.


 


8.4  Funding Losses.  The Company hereby agrees that upon demand
by any Bank (which demand shall be accompanied by a statement setting forth the
basis for the amount being claimed, a copy of which shall be furnished to the
Administrative Agent), the Company will indemnify such Bank against any net
loss or expense which such Bank may sustain or incur (including any net loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain any Eurodollar Loan), as
reasonably determined by such Bank, as a result of (a) any payment, prepayment
or conversion of any Eurodollar Loan of such Bank on a date other than the last
day of an Interest Period for such Loan (including any conversion pursuant to Section 8.3)
or (b) any failure of the Company to borrow or convert any Loan on a date
specified therefor in a notice of borrowing or conversion pursuant to this
Agreement.  For this purpose, all
notices to the Administrative Agent pursuant to this Agreement shall be deemed
to be irrevocable.


 


8.5  Right
of Banks to Fund through Other Offices.  Each Bank may, if it so elects, fulfill its commitment as to any
Eurodollar Loan by causing a foreign branch or affiliate of such Bank to make
such Loan, provided that in such event for the purposes of this
Agreement such Loan shall be deemed to have been made by such Bank and the
obligation of the Company to repay such Loan shall nevertheless be to such Bank
and shall be deemed held by it, to the extent of such Loan, for the account of
such branch or affiliate.


 


8.6  Discretion
of Banks as to Manner of Funding. 
Notwithstanding any provision of this Agreement to the contrary, each
Bank shall be entitled to fund and maintain its funding of all or any part of
its Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations shall be made as if such Bank had
actually funded and maintained each Eurodollar Loan during each Interest Period
for such Loan through the purchase of deposits having a maturity corresponding
to such Interest Period and bearing an interest rate equal to the Eurodollar
Rate for such Interest Period.


 


8.7  Mitigation
of Circumstances; Replacement of Affected Bank.  (a) 
Each Bank shall promptly notify the Company and the Administrative Agent
of any event of which it has knowledge which will result in, and will use
reasonable commercial efforts available to it (and not, in such Bank’s good
faith judgment, otherwise disadvantageous to such Bank) to mitigate or avoid,
(i) any obligation by the Company to pay any amount pursuant to Section 7.6
or 8.1 or (ii) the occurrence of any circumstance of the nature
described in Section 8.2 or 8.3 (and, if any Bank has given
notice of any such event described in clause (i) or (ii) above
and thereafter such event ceases to exist, such Bank shall promptly so notify
the Company and the Administrative Agent). 
Without limiting the foregoing, each Bank will designate a different
funding office if such designation will avoid (or reduce the cost to the
Company of) any event described in clause (i) or (ii) of the
preceding sentence and such designation will not, in such Bank’s sole good
faith judgment, be otherwise disadvantageous to such Bank.


 


27

















 


(b)           At any time any Bank is an Affected Bank, the Company may replace such
Affected Bank as a party to this Agreement with one or more other bank(s) or
financial institution(s) reasonably satisfactory to the Administrative Agent
(and upon notice from the Company such Affected Bank shall assign pursuant to
an Assignment Agreement, and without recourse or warranty, its Commitment, its
Loans, its Note, its participations in Letters of Credit and Swing Line Loans,
and all of its other rights and obligations hereunder to such replacement
bank(s) or other financial institution(s) for a purchase price equal to the sum
of the principal amount of the Loans so assigned, all accrued and unpaid interest
thereon, its ratable share of all accrued and unpaid fees, any amounts payable
under Section 8.4 as a result of such Bank receiving payment of any
Eurodollar Loan prior to the end of an Interest Period therefor and all other
obligations owed to such Affected Bank hereunder).


 


8.8  Conclusiveness
of Statements.  Determinations
and statements of any Bank pursuant to Section 8.1, 8.2, 8.3
or 8.4 shall be conclusive absent demonstrable error.  Banks may use reasonable averaging and
attribution methods in determining compensation under Sections 8.1 and 8.4.


 


SECTION 9  WARRANTIES.


 


To induce the Administrative
Agent and the Banks to enter into this Agreement and to induce the Banks to
make Loans and issue or purchase participations in Letters of Credit hereunder,
the Company warrants to the Administrative Agent and the Banks that:


 


9.1  Organization,
etc.  The Company is a corporation
duly organized and validly existing in good standing under the laws of the
State of Delaware, each Subsidiary is duly organized and validly existing in
good standing under the laws of the jurisdiction of its organization, and each
Loan Party has the power (corporate or otherwise) to own its properties and to
carry on its business as now being conducted.


 


9.2  Authorization;
No Conflict.  The execution and
delivery by each Loan Party of each Loan Document to which it is a party, the
borrowings by the Company hereunder and the performance by each Loan Party of
its obligations under each Loan Document to which it is a party are within the
organizational powers of the Company and each Subsidiary have been duly
authorized by all necessary organizational action on the part of each Loan
Party (including any necessary shareholder, partner or member action), have
received all necessary governmental approval (if any shall be required), and do
not and will not (a) violate any provision of law or any order, decree or
judgment of any court or other government agency which is binding on the
Company or any Subsidiary, (b) contravene or conflict with, or result in a
breach of, any provision of the Certificate of Incorporation, By-Laws or other
organizational documents of the Company or any Subsidiary or of any material
agreement, indenture, instrument or other document which is binding on the
Company or any Subsidiary or (c) result in, or require, the creation or
imposition of any Lien on any property of the Company or any Subsidiary (other
than Liens arising under the Loan Documents).


 


9.3  Validity
and Binding Nature.  Each Loan
Document to which a Loan Party is a party is the legal, valid and binding
obligation of such Loan Party, enforceable against such Loan Party


 


28

















 


in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency and
similar laws of general application affecting the enforcement of creditors’
rights and to general principles of equity limiting the availability of
equitable remedies.


 


9.4  Financial
Condition.  The audited
consolidated financial statements of the Company and its Subsidiaries dated
September 28, 2003 and the unaudited consolidated financial statements of
the Company and its Subsidiaries dated March 28, 2004, copies of which
have been furnished prior to the Effective Date to each Bank which is a party
hereto on the Effective Date:


 


(i)            were prepared in conformity with GAAP
consistently applied; and


 


(ii)           present fairly in all material respects the financial condition of the
Company and its Subsidiaries as at such dates and the results of their
operations for the periods then ended (subject, in the case of the unaudited
financial statements, to the absence of footnotes and to normal year-end
adjustments).


 


9.5  No
Material Adverse Change.  Since
September 28, 2003, no events have occurred which, individually or in the
aggregate, have had or are reasonably likely to have a Material Adverse Effect.


 


9.6  Litigation
and Contingent Liabilities.  No
litigation (including derivative actions), arbitration proceeding, labor
controversy or governmental investigation or proceeding is pending or, to the
Company’s knowledge, threatened against the Company or any Subsidiary which is
reasonably likely to have a Material Adverse Effect, except as set forth in Schedule 9.6.  Other than any liability incident to such
litigation or proceedings, neither the Company nor any Subsidiary has any
material contingent liabilities not provided for or disclosed in the financial
statements referred to in Section 9.4 or listed in Schedule 9.6.


 


9.7  Ownership
of Properties; Liens. 
Each of the Company and each Subsidiary owns good and, in the case of
real property, marketable title to, or a valid leasehold interest in, all of
its material properties and assets, real and personal, tangible and intangible,
of any nature whatsoever (including patents, trademarks, trade names, service
marks and copyrights), free and clear of all Liens, charges and claims
(including infringement claims with respect to patents, trademarks, copyrights
and the like), except as permitted pursuant to Section 10.8.


 


9.8  Subsidiaries.  As of the Effective Date, the Company has no
Subsidiaries except those listed in Schedule 9.8.


 


9.9  Pension
and Welfare Plans.  During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement or the making of any Loan hereunder, (i) no steps have been
taken to terminate any Pension Plan which would be reasonably likely to result
in the Company being required to make a contribution to such Pension Plan, or
incurring a liability or obligation to such Pension Plan, in excess of
$5,000,000, and (ii) no contribution failure has occurred with respect to any
Pension Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA.  No condition exists or event or
transaction has occurred with respect


 


29

















 


to any Pension Plan which
could result in the incurrence by the Company of any material liability, fine
or penalty.  Except as disclosed in the
financial statements referred to in Section 9.4, the Company has no
contingent liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage described in Part
6 of subtitle B of title I of ERISA.


 


9.10  Investment
Company Act.  Neither the
Company nor any Subsidiary is an “investment company” or a company “controlled”
by an “investment company”, within the meaning of the Investment Company Act of
1940.


 


9.11  Public
Utility Holding Company Act. 
Neither the Company nor any Subsidiary is a “holding company”, or a
“subsidiary company” of a “holding company”, or an “affiliate” of a “holding
company” or of a “subsidiary company” of a “holding company”, within the
meaning of the Public Utility Holding Company Act of 1935.


 


9.12  Regulation U.  The Company is not engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.  Margin stock does not constitute more than 25% of the value of
all assets of the Company and its Subsidiaries.


 


9.13  Taxes.  Each of the Company and each Subsidiary has
filed all federal income tax returns and all other material tax returns and
reports (or appropriate extensions thereof, as applicable) required by law to
have been filed by it and has paid, or made provision for the timely payment
of, all material taxes and governmental charges thereby shown to be owing,
except any such taxes or charges which are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.


 


9.14  Solvency,
etc.  On the Effective Date (or, in
the case of any Subsidiary which becomes a Guarantor after the Effective Date,
on the date such Person becomes a Guarantor), and immediately prior to and
after giving effect to the issuance of each Letter of Credit and each borrowing
hereunder and the use of the proceeds thereof, (a) each Loan Party’s assets
will exceed its liabilities and (b) each Loan Party will be solvent, will be
able to pay its debts as they mature, will own property with fair saleable
value greater than the amount required to pay its debts and will have capital
sufficient to carry on its business as then constituted.


 


9.15  Environmental
Matters.  Except as set forth in
Schedule 9.15:


 


(a)           all facilities and property (including underlying groundwater)
currently owned or leased or, to the best knowledge of the Company, previously
owned or leased by the Company or any Subsidiary have been, and (in the case of
facilities and property that are currently owned or leased) continue to be,
owned or leased by the Company or such Subsidiary in compliance with all
Environmental Laws, except where any such failure to comply would not,
individually or in the aggregate, reasonably be expected to result in liability
of the Company or any Subsidiary in excess of $5,000,000;


 


30

















 


(b)           there have been no past, and there are no pending or, to the best of
the Company’s knowledge, threatened


 


(i)            claims, complaints, notices or requests for
information received by the Company or any Subsidiary with respect to any
alleged violation of any Environmental Law which is reasonably likely to be
adversely determined and, if so determined, would, individually or in the
aggregate, reasonably be expected to result in any liability of the Company and
its Subsidiaries in excess of $5,000,000;


 


(ii)           complaints, notices or inquiries to the Company or any Subsidiary
regarding potential liability under any Environmental Law which would,
individually or in the aggregate, reasonably be expected to result in liability
of the Company and its Subsidiaries in excess of $5,000,000;


 


(c)           there have been no Releases of Hazardous Materials at, on or under any
property now owned or leased or, to the best knowledge of the Company,
previously owned or leased by the Company or any Subsidiary that, singly or in
the aggregate, have had, or would reasonably be expected to have, a Material
Adverse Effect;


 


(d)           the Company and its Subsidiaries have been issued and are in compliance
with all permits, certificates, approvals, licenses and other authorizations
relating to environmental matters and necessary or desirable for their
businesses except where the failure to obtain and/or comply with any of the
foregoing would not, individually or in the aggregate, reasonably be expected
to result in liability of the Company and its Subsidiaries in excess of
$5,000,000;


 


(e)           no property now owned or leased or, to the best knowledge of the
Company, previously owned or leased, by the Company or any Subsidiary is listed
or (with respect to owned property only) proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state list
of sites requiring investigation or clean-up;


 


(f)            there are no underground storage tanks,
active or abandoned, including petroleum storage tanks, on or under any
property now owned or leased or, to the best knowledge of the Company,
previously owned or leased by the Company or any Subsidiary that, singly or in
the aggregate, have had, or would reasonably be expected to have, a Material
Adverse Effect;


 


(g)           neither the Company nor any Subsidiary has directly transported or, to
the best of the Company’s knowledge, directly arranged for the transportation
of any Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or
on any similar state list or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to claims against
the Company or such Subsidiary for any remedial


 


31






















work, damage to natural resources or personal injury, including claims
under CERCLA, which in any case would, individually or in the aggregate,
reasonably be expected to result in liability of the Company and its Subsidiary
in excess of $5,000,000;


 


(h)                                 there are no polychlorinated biphenyls or
friable asbestos present at any property now owned or leased or, to the best
knowledge of the Company, previously owned or leased by the Company or any
Subsidiary that, singly or in the aggregate, have had, or would reasonably be
expected to have, a Material Adverse Effect; and


 


(i)                                     no conditions exist at, on or under any
property now owned or leased or, to the best knowledge of the Company,
previously owned or leased by the Company or any Subsidiary which, with the passage
of time, or the giving of notice or both, would give rise to liability under
any Environmental Law except where any such liability would not, individually
or in the aggregate, reasonably be expected to result in liability of the
Company and its Subsidiaries in excess of $5,000,000.


 


For purposes of this Section 9.15,
with respect to any facility or property having multiple lessees, only that
portion which is leased by the Company or any Subsidiary shall be considered a
facility or property leased by the Company or such Subsidiary.


 


9.16  Absence of
Default.  Neither the Company
nor any Subsidiary is in material default under any material contract to which
it is a party or by which it is bound.


 


9.17  Information.  All written information heretofore or
contemporaneously herewith furnished by the Company or any Subsidiary to the
Administrative Agent or any Bank for purposes of or in connection with this
Agreement and the transactions contemplated hereby is, and all written
information hereafter furnished by or on behalf of the Company or any
Subsidiary to the Administrative Agent or any Bank pursuant hereto or in
connection herewith will be, true and accurate (based upon reasonable estimates
and projections) in every material respect on the date as of which such
information is dated or certified, and none of such information is or will be
incomplete by omitting to state any material fact necessary to make such
information not misleading (it being recognized by the Administrative Agent and
the Banks that any projections and forecasts provided by the Company or any
Subsidiary are based on good faith estimates and assumptions believed by the
Company or such Subsidiary to be reasonable as of the date of the applicable
projections or assumptions and that actual results during the period or periods
covered by any such projections and forecasts likely will differ from projected
or forecasted results). Nothing in this Section 9.17 shall be
construed as a representation or covenant that any such projections or forecasts
will be achieved.


 


SECTION 10 
COVENANTS.


 


Until the expiration or
termination of the Commitments and thereafter until all obligations of the
Company hereunder and under the other Loan Documents are paid in full and all
Letters of Credit have been terminated, the Company agrees that, unless at any
time the Required Banks shall otherwise expressly consent in writing, it will:


 


32

















 


10.1  Reports,
Certificates and Other Information. 
Furnish to each Bank:


 


10.1.1  Audit Report.  Promptly when available (and in any event
not later than one Business Day after the date required to be filed with the
SEC), a copy of the annual audit report of the Company and its Subsidiaries for
each Fiscal Year, including therein consolidated balance sheets of the Company
and its Subsidiaries as of the end of such Fiscal Year and consolidated
statements of operations and cash flows of the Company and its Subsidiaries for
such Fiscal Year, which audit report shall be (a) without qualification as to
going concern or scope and (b) prepared by PricewaterhouseCoopers LLP or other
independent auditors of recognized standing selected by the Company and
reasonably acceptable to the Required Banks.


 


10.1.2  Quarterly
Reports.  Promptly when
available (and in any event not later than one Business Day after the date
required to be filed with the SEC), the consolidated balance sheets of the
Company for each Fiscal Quarter (except the last Fiscal Quarter) of each Fiscal
Year, and consolidated statements of operations and cash flows for such Fiscal
Quarter and for the period beginning with the first day of such Fiscal Year and
ending on the last day of such Fiscal Quarter, together with a certificate of
the chief executive officer or the chief financial officer of the Company
certifying that such financial statements present fairly in all material
respects the financial condition and results of operations of the Company and
its Subsidiaries as of the dates and periods indicated, subject to changes
resulting from normal year-end adjustments.


 


10.1.3  Compliance
Certificates.  Contemporaneously
with the furnishing of a copy of each annual audit report pursuant to Section 10.1.1
and of each set of quarterly statements pursuant to Section 10.1.2,
(a) a duly completed compliance certificate in the form of Exhibit B,
with appropriate insertions, dated the date of such annual report or such
quarterly statements and signed by the chief executive officer or the chief
financial officer of the Company, containing a computation of each of the
financial ratios and restrictions set forth in Section 10.6 and to
the effect that such officer has not become aware of any Event of Default or
Unmatured Event of Default that has occurred and is continuing or, if there is
any such event, describing it and the steps, if any, being taken to cure it;
and (b) an updated organizational chart listing all Subsidiaries and the
jurisdictions of their organization.


 


10.1.4  Reports
to SEC and to Shareholders. 
Promptly upon the filing or sending thereof, a copy of any annual,
periodic or special report or registration statement (inclusive of exhibits
thereto) filed with the SEC or any securities exchange and any report, proxy
statement or other communication to the Company’s shareholders generally.


 


10.1.5  Notice of Default,
Litigation and ERISA Matters. 
Promptly upon becoming aware of any of the following, written notice
describing the same and the steps being taken by the Company or the Subsidiary
affected thereby with respect thereto:


 


(a)                                  the occurrence of an Event of Default or
an Unmatured Event of Default;


 


(b)                                 any litigation, arbitration or
governmental investigation or proceeding not previously disclosed by the
Company to the Banks which has been instituted or, to the


 


33

















 


knowledge of the Company, is threatened against the Company or any
Subsidiary or to which any of the properties of any thereof is subject which,
if adversely determined, might reasonably be expected to have a Material
Adverse Effect;


 


(c)                                  the institution of any steps by any
member of the Controlled Group or any other Person to terminate any Pension
Plan, or the failure of any member of the Controlled Group to make a required
contribution to any Pension Plan (if such failure is sufficient to give rise to
a lien under Section 302(f) of ERISA) or to any Multiemployer Pension
Plan, or the taking of any action with respect to a Pension Plan which could
result in the requirement that the Company furnish a bond or other security to
the PBGC or such Pension Plan, or the occurrence of any event with respect to
any Pension Plan or Multiemployer Pension Plan which could result in the
incurrence by any member of the Controlled Group of any material liability,
fine or penalty (including any claim or demand for withdrawal liability or
partial withdrawal from any Multiemployer Pension Plan), or any material
increase in the contingent liability of the Company with respect to any
post-retirement Welfare Plan benefit, or any notice that any Multiemployer
Pension Plan is in reorganization, that increased contributions may be required
to avoid a reduction in plan benefits or the imposition of an excise tax, that
any such plan is or has been funded at a rate less than that required under
Section 412 of the Code, that any such plan is or may be terminated, or
that any such plan is or may become insolvent;


 


(d)                                 any cancellation (without replacement) or
material change in any insurance maintained by the Company or any Subsidiary;


 


(e)                                  any event (including any violation of any
Environmental Law or the assertion of any Environmental Claim) which would
reasonably be expected to have a Material Adverse Effect; or


 


(f)                                    any setoff, claims (including any
Environmental Claim), withholding or other defense to which any material
portion of the collateral granted under any Collateral Document, or the Banks’
rights with respect to any such collateral, are subject.


 


10.1.6  Subsidiaries.  Promptly upon the occurrence thereof, a
written report of any change in the list of its Subsidiaries.


 


10.1.7  Management
Reports.  Promptly upon the
request of the Administrative Agent or any Bank (acting through the
Administrative Agent), copies of all detailed financial and management reports
submitted to the Company by independent auditors in connection with any annual
or interim audit made by such auditors of the books of the Company.


 


10.1.8  Collateral
Information.  Promptly, and in
any event not less than 10 days after the occurrence thereof, a written report
of any change in the jurisdiction of organization of the Company or any
Subsidiary.


 


34

















 


10.1.9  Other
Information.  Promptly from time
to time, such other information concerning the Company and its Subsidiaries as
the Administrative Agent or any Bank (acting through the Administrative Agent)
may reasonably request.


 


10.2  Books, Records
and Inspections.  Keep, and cause
each Subsidiary to keep, its books and records in accordance with sound
business practices sufficient to allow the preparation of financial statements
in accordance with GAAP; permit, and cause each Subsidiary to permit, on
reasonable notice and at reasonable times and intervals (or at any time without
notice during the existence of an Event of Default) the Administrative Agent or
any Bank or any representative thereof to inspect the properties and operations
of the Company and of such Subsidiary, provided that so long as no Event
of Default or Unmatured Event of Default exists, neither the Administrative
Agent nor any Bank shall make more than one such inspection during any calendar
year; and permit, and cause each Subsidiary to permit, on reasonable notice and
at reasonable times and intervals (or at any time without notice during the
existence of an Event of Default), any Bank or the Administrative Agent or any
representative thereof to visit any or all of its offices, to discuss its
financial matters with its officers and its independent auditors (and the
Company hereby authorizes such independent auditors to discuss such financial
matters with any Bank or the Administrative Agent or any representative so long
as an officer of the Company has a bona fide opportunity to be present at such
discussion), and to examine (and, at the expense of the Company or the
applicable Subsidiary, photocopy extracts from) any of its books or other
corporate records. The Company agrees to pay the fees of its auditors incurred
in connection with any reasonable exercise of the rights of any Bank or the
Administrative Agent or any representative thereof pursuant to this Section.


 


10.3  Insurance.  Maintain, and cause each Subsidiary to
maintain, with reputable, financially sound insurance companies, (a) at all
times insurance to such extent and against such hazards and liabilities, as is
customarily maintained by companies similarly situated (and, in any event, such
insurance as may be required by any law or governmental regulation or court
order or decree) and (b) “errors and omissions” insurance with coverage of at least
$30,000,000; and, upon request of the Administrative Agent (or any Bank acting
through the Administrative Agent), furnish to the Administrative Agent or such
Bank a certificate setting forth in reasonable detail the nature and extent of
all insurance maintained by the Company and its Subsidiaries.


 


10.4  Compliance with Laws;
Payment of Taxes and Liabilities. 
(a) Comply, and cause each Subsidiary to comply, with all applicable
laws, rules, regulations, decrees and orders except where the failure to comply
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and (b) pay, and cause each Subsidiary to pay, prior
to delinquency, all federal income taxes and all other material taxes and
governmental charges against it or any of its property, provided that
the foregoing shall not require the Company or any Subsidiary to pay any such
tax or charge so long as it shall contest the validity thereof in good faith by
appropriate proceedings and shall set aside on its books adequate reserves with
respect thereto in accordance with GAAP.


 


10.5  Maintenance
of Existence, etc. 
Maintain and preserve, and (subject to Section 10.11) cause
each Subsidiary to maintain and preserve, (a) its existence and good standing
in the


 


35

















 


jurisdiction of
its organization and (b) its qualification and good standing as a foreign
entity in each jurisdiction where the nature of its business makes such
qualification necessary (except where the failure to qualify could not
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect).


 


10.6  Financial
Covenants.


 


10.6.1  Minimum Net Worth.  Not permit Net Worth at any time to be less
than the sum of (a) $318,000,000, (b) 50% of the sum of Consolidated Net Income
for each Fiscal Quarter, beginning with the Fiscal Quarter ending
March 28, 2004 and ending with the most recently-ended Fiscal Quarter for
which the Company has delivered financial statements (provided that, if
Consolidated Net Income is less than zero for any Fiscal Quarter, for purposes
of this Section 10.6.1 Consolidated Net Income will be deemed to be
zero for such quarter) plus (c) 100% of the Net Cash Proceeds of any
equity issued by the Company or any Subsidiary (on a consolidated basis) after
the Effective Date.


 


10.6.2  Fixed
Charge Coverage Ratio.  Not
permit the ratio, for any Computation Period, of (i) Adjusted EBITDA less
Capital Expenditures to (ii) Interest Expense plus all income taxes
(including any franchise or other tax based upon gross or net income or
receipts) paid by the Company and its Subsidiaries plus all required
payments of principal of Debt of the Company and its Subsidiaries, in each case
during such Computation Period (and determined on a consolidated basis), to be
less than 1.25 to 1.


 


10.6.3  Adjusted
Leverage Ratio.  Not permit the
Adjusted Leverage Ratio, as of the last day of any Computation Period, to be
greater than 2.25 to 1.


 


10.7  Limitations on
Debt.  Not, and not permit any
Subsidiary to, create, incur, assume or suffer to exist any Debt, except:


 


(a)                                  obligations arising under the Loan
Documents;


 


(b)                                 Debt in respect of Capital Leases;


 


(c)                                  unsecured Debt of Subsidiaries to the
Company or to other Subsidiaries;


 


(d)                                 Hedging Agreements entered into by the
Company or any Subsidiary with the Administrative Agent or any Bank or any
Affiliate thereof ; provided that all such Hedging Agreements are
entered into to protect against bona fide business risks and not for speculation;


 


(e)                                  Suretyship Liabilities in respect of any
obligation of the Company or any Subsidiary permitted under this Agreement;


 


(f)                                    Debt in respect of taxes, assessments or
governmental charges to the extent that payment thereof shall not at the time
be required to be made in accordance with Section 10.4;


 


36

















 


(g)                                 Debt outstanding on the date hereof and
listed in Schedule 10.7 or hereafter incurred in connection with
Liens permitted by Section 10.8, and extensions, renewals and
refinancings of any Debt described in this clause (g) so long as the
principal amount thereof is not increased;


 


(h)                                 Subordinated Debt;


 


(i)                                     Debt under the Note Purchase Agreement
(including, without duplication, guaranties thereof) in an aggregate principal
amount not exceeding $110,000,000;


 


(j)                                     Debt constituting a portion of the
deferred purchase price for any acquisition permitted by Section 10.11(c);


 


(k)                                  other Debt not exceeding in the aggregate
$20,000,000.


 


10.8  Liens.  Not, and not permit any Subsidiary to,
create or permit to exist any Lien on any of its real or personal properties,
assets or rights of whatsoever nature (whether now owned or hereafter
acquired), except:


 


(a)                                  Liens for taxes or other governmental
charges not at the time delinquent or thereafter payable without penalty or
being contested in good faith by appropriate proceedings and, in each case, for
which it maintains adequate reserves;


 


(b)                                 Liens arising in the ordinary course of
business (such as (i) Liens of carriers, warehousemen, mechanics and
materialmen and other similar Liens imposed by law and (ii) Liens incurred in
connection with worker’s compensation, unemployment compensation and other
types of social security (excluding Liens arising under ERISA) or in connection
with surety bonds (excluding bonds of the type described in clause (a)
below), bids, performance bonds and similar obligations which, in each case,
are not perfected by the filing of a financing statement or the delivery of
collateral) for sums not overdue or being contested in good faith by
appropriate proceedings and not involving any deposits or advances or borrowed
money or the deferred purchase price of property or services, and, in each
case, for which it maintains adequate reserves;


 


(c)                                  Liens identified in Schedule 10.8;


 


(d)                                 Liens in connection with Capital Leases
(to the extent permitted hereunder);


 


(e)                                  attachments, judgments and other similar
Liens (including appeal bonds), for sums not exceeding $5,000,000, arising in
connection with court proceedings, provided the execution or other enforcement
of such Liens is effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate proceedings;


 


37

















 


(f)                                    other Liens incidental to the conduct of
the business of the Company or a Subsidiary or the ownership of its property or
assets, including easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens, which Liens were not incurred
in connection with the borrowing of money and do not, in any case or in the
aggregate, interfere in any material respect with the ordinary conduct of the
business of the Company or any Subsidiary;


 


(g)                                 building restrictions, zoning laws and
other statutes, laws, rules, regulations, ordinances and restrictions, and any
amendments thereto, now or at any time hereafter adopted by any governmental
authority having jurisdiction;


 


(h)                                 any interest or title of a lessor or
secured by a lessor’s interest under any lease (other than a Capital Lease):


 


(i)                                     Liens in favor of the Collateral Agent
pursuant to the Loan Documents;


 


(j)                                     Liens on assets or property acquired, or
on the property of a Person acquired, by the Company or any Subsidiary so long
as (i) such acquisition is permitted hereunder, (ii) all obligations secured by
such Liens are repaid concurrently with, or promptly after, such acquisition
and (iii) all UCC financing statements, mortgages or similar documents filed or
recorded to give notice of such Liens are terminated or released within 120
days after such acquisition; and


 


(k)                                  other Liens, in addition to the Liens
permitted by clauses (a) through (j), securing Debt permitted by Section 10.7(i)
and Section 10.7(j).


 


10.9  Loans or Advances.  Not, and not permit any Subsidiary to, make
any loan or advance; except for (i) loans or advances by the Company to any
Subsidiary or by any Subsidiary to the Company, (ii) loans and advances to
officers and employees of the Company and its Subsidiaries for travel,
entertainment, relocation and similar ordinary business purposes in an
aggregate amount not exceeding $500,000 at any time outstanding and (iii) other
loans and advances in an aggregate amount not exceeding $5,000,000 at any time
outstanding.


 


10.10  Restricted
Payments.  Not, and not permit
any Subsidiary to, (a) declare or pay any dividends on any of its capital stock
(other than stock dividends), (b) purchase or redeem any such stock or any
warrants, units, options or other rights in respect of such stock, (c) make any
other distribution to shareholders, (d) prepay, purchase, redeem or defease any
Subordinated Debt, (e) make any payment on or in respect of any Subordinated
Debt (other than scheduled payments of interest made in the form of additional
Subordinated Debt or common stock), or (f) set aside funds for any of the
foregoing; provided that (i) any Subsidiary may declare and pay
dividends to the Company or to any other wholly-owned Subsidiary and (ii) so
long as no Event of Default or Unmatured Event of Default exists or would
result therefrom and, after giving effect thereto (and any incurrence of Debt
in connection therewith), the Adjusted Leverage Ratio will be less than 2 to 1,
the Company may repurchase shares of its capital stock for immediate retirement
in an aggregate amount, for all such repurchases during the term of this
Agreement,


 


38

















 


not to exceed
10.0% of Net Worth (measured as of the end of the Fiscal Quarter immediately
preceding any such purchase).


 


10.11  Mergers and Consolidations;
Acquisitions.  Not, and not
permit any Subsidiary to, be a party to any merger or consolidation, or
purchase or otherwise acquire all or substantially all of the assets or any
stock of any class of, or any partnership or joint venture interest in, any
other Person (or of any division or business unit of any Person), except
(a) any such merger or consolidation of or by any wholly-owned Subsidiary
into the Company or any other wholly-owned Subsidiary, (b) any such
purchase or other acquisition by the Company or any wholly-owned Subsidiary of
the assets or stock of any wholly-owned Subsidiary, and (c) acquisitions
of all of the assets or stock of Persons which are in the same or a similar line
of business as the Company and its Subsidiaries; provided that any
acquisition described in this clause (c) must satisfy all of the
following conditions: (i) each Person so acquired shall comply with all of
the terms of this Agreement and the other Loan Documents that are applicable to
such Person; (ii) either the required majority of the Board of Directors
(or other equivalent governing body) of the Person so acquired incumbent at the
time such acquisition is proposed has acquiesced to the acquisition, or the
acquisition is otherwise deemed in the reasonable judgment of the
Administrative Agent to be a “friendly” acquisition; (iii) no Event of
Default or Unmatured Event of Default shall have occurred and be continuing at
the time of, or would result from the making of, such acquisition;
(iv) the aggregate consideration (including assumed debt, but excluding
stock of the Company) for any one acquisition or series of related acquisitions
shall not exceed $75,000,000; and (v) substantially contemporaneously with
any such acquisition of stock, the Company shall grant, or cause the applicable
Person(s) to grant, to the Administrative Agent, for the benefit of the Banks,
a first perfected security interest in all of the stock so acquired.


 


10.12  Asset Dispositions.  Not, and not permit any Subsidiary to, sell,
transfer, convey, lease or otherwise dispose of, or grant options, warrants or
other rights with respect to, any of its assets, or sell, assign, pledge or
otherwise transfer any receivables, contract rights, general intangibles,
chattel paper or instruments, with or without recourse, except for (a)
dispositions of inventory or obsolete assets in the ordinary course of business
consistent with past practices and (b) other dispositions of assets, provided that (i) no disposition described in this clause (b) shall be made if an Event of Default or Unmatured Event of Default
exists or would result therefrom; and (ii) after giving effect to any
disposition pursuant to this clause (b), the aggregate fair market value
of all assets disposed of pursuant to this clause (b) during the period
from the Effective Date to the Termination Date shall not exceed 2.5% of the
consolidated total assets of the Company as of the end of the most recent
Fiscal Year.


 


10.13  Use of Proceeds.  Use the proceeds of the Loans solely for
working capital, for acquisitions permitted by Section 10.11, for
capital expenditures and for other general corporate purposes; and not use or
permit any proceeds of any Loan to be used, either directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of “purchasing or
carrying” any Margin Stock; provided that, subject to the limitations
set forth in Section 10.10, the Company may repurchase shares of
its own stock so long as such shares are immediately retired.


 


39

















 


10.14  Further
Assurances.  Take, and cause
each Subsidiary to take, such actions as are necessary, or as the
Administrative Agent (or the Required Banks acting through the Administrative
Agent) or the Collateral Agent may reasonably request, from time to time
(including the execution and delivery of guaranties, security agreements,
pledge agreements, financing statements and other documents, the filing or
recording of any of the foregoing, the delivery of stock certificates and other
collateral with respect to which perfection is obtained by possession and the
delivery of appropriate legal opinions with respect to any of the foregoing) to
ensure that (i) the obligations of the Company hereunder and under the other
Loan Documents are (x) secured by all account receivables of the Company and
all equity interests in Subsidiaries owned by the Company and (y)
unconditionally guaranteed by all Subsidiaries (including, promptly upon the
acquisition or creation thereof, any Subsidiary acquired or created after the
date hereof) by execution of a counterpart of the Guaranty; and (ii) the
obligations of each Subsidiary under the Guaranty are secured by all account
receivables of such Subsidiary and all equity interests in other Subsidiaries
owned by such Subsidiary; provided that unless the Required Banks
otherwise request in writing, (a) no Foreign Corporation (as defined below) or
Excluded Subsidiary shall be required to execute the Guaranty, pledge any
equity interest or grant a security interest in any account receivable; and (b)
neither the Company nor any other Subsidiary shall be required to pledge more
than 65% of the stock of any Foreign Corporation.  For purposes of the foregoing, a “Foreign Corporation” is any
corporate Subsidiary which is incorporated in a jurisdiction other than, and
does substantially all of its business outside of, the United States.


 


10.15  Transactions
with Affiliates.  Not, and not
permit any Subsidiary to, enter into, or cause, suffer or permit to exist any
transaction, arrangement or contract with any of its other Affiliates (other
than the Company and any Subsidiary) which is on terms which are less favorable
than are obtainable from any Person which is not one of its Affiliates.


 


10.16  Employee
Benefit Plans.  Maintain, and cause
each Subsidiary to maintain, each Pension Plan in compliance with all
applicable requirements of law and regulations except where the failure to so
maintain and/or comply could not, individually or in the aggregate, reasonably
be expected to result in any liability of the Company or any Subsidiary in
excess of $5,000,000.


 


10.17  Business
Activities.  Not, and not permit
any Subsidiary to, engage in any business activity other than consulting and
engineering services, support services, communication services, remediation and
construction management, facility operation and maintenance services and
research and development and such other activities as are incidental thereto.


 


10.18  Maintenance
of Property.  Maintain, and
cause each Subsidiary to maintain, its properties which are material to the
conduct of its business in good working order and condition (ordinary wear and
tear excepted).


 


10.19  Environmental
Matters.


 


10.19.1  Environmental
Obligations.  (a) Comply, and
cause each Subsidiary to comply, in a reasonable manner with any applicable
federal or state judicial or administrative order


 


40

















 


requiring the
performance at any real property owned, operated, or leased by the Company or
any Subsidiary of activities in response to any Release or threatened Release
of any Hazardous Material, except for the period of time that the Company or
such Subsidiary is diligently in good faith contesting such order; (b) use and
operate, and cause each Subsidiary to use and operate, all of its facilities
and properties in compliance with all applicable Environmental Laws except
where the failure to comply would not, individually or in the aggregate,
reasonably be expected to result in any liability of the Company or any
Subsidiary in excess of $5,000,000; (c) keep, and cause each Subsidiary to
keep, all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith except where the failure to comply would not, individually
or in the aggregate, reasonably be expected to result in any liability of the
Company or any Subsidiary in excess of $5,000,000; (d) handle, and cause each
Subsidiary to handle, all Hazardous Materials in compliance with all applicable
Environmental Laws except where the failure to so handle would not,
individually or in the aggregate, reasonably be expected to result in any liability
of the Company or any Subsidiary in excess of $5,000,000; and (e) not, and not
permit any Subsidiary to, commence the unlawful disposal of any Hazardous
Material into or onto any real property owned, operated or leased by the
Company or any Subsidiary nor allow any material Lien imposed pursuant to any
Environmental Law to attach to any such real property.  For purposes of this Section 10.19.1,
with respect to any facility or property having multiple lessees, only that
portion which is leased by the Company or any Subsidiary shall be considered a
facility or property leased by the Company or such Subsidiary.


 


10.19.2  Environmental
Information.  Promptly notify
the Bank of the receipt by the Company or any Subsidiary of any written claim,
demand, proceeding, action or notice of liability by any Person arising out of
or relating to the Release or threatened Release of any Hazardous Material,
except for any release or threatened release with respect to which the maximum
liability of the Company and its Subsidiaries is reasonably expected to be less
than $5,000,000; and promptly notify the Bank of any Release, threatened
Release or disposal of any Hazardous Material reported to any governmental
regulatory authority at any real property owned, operated or leased by the
Company or any Subsidiary, except for any release, threat of release or
disposal with respect to which the maximum liability of the Company and its
Subsidiaries is reasonably expected to be less than $5,000,000.


 


10.20  Unconditional
Purchase Obligations.  Not, and
not permit any Subsidiary to, enter into or be a party to any contract for the
purchase of materials, supplies or other property or services, if such contract
requires that payment be made by it regardless of whether or not delivery is ever
made of such materials, supplies or other property or services; provided
that the Company or any Subsidiary may enter into any such contract so long as
(i) the aggregate amount of all payments to be made under such contract does
not exceed $2,000,000 and (ii) the aggregate amount of all payments to be made
under all such contracts in any Fiscal Year by the Company and its Subsidiaries
does not exceed $5,000,000.


 


10.21  Inconsistent
Agreements.  Not, and not permit
any Subsidiary to, enter into any material agreement containing any provision
which (a) would be violated or breached by any borrowing, or the obtaining of
any Letter of Credit, by the Company hereunder or by the


 


41

















 


performance by the
Company or any Subsidiary of any of its obligations hereunder or under any
other Loan Document, (b) would prohibit the Company or any Subsidiary (other an
Excluded Subsidiary) from granting to the Collateral Agent, for the benefit of
the Banks and certain other parties, a Lien on any of its assets (other than
(i) the Note Purchase Agreement and (ii) customary negative pledge provisions
arising in connection with Liens permitted by Section 10.8(c), (d),
(h) and (j) that apply only to the specific property subject to
any such Lien and the proceeds thereof) or (c) would prevent any Subsidiary
from paying cash dividends, or making other cash distributions, to its parent.


 


10.22  Excluded
Subsidiaries.  Not permit all
Excluded Subsidiaries to own at any time more than 2.5% of the consolidated
total assets of the Company and its Subsidiaries, to have more than 2.5% of the
consolidated revenues of the Company and its Subsidiaries in any Fiscal Quarter
or to be liable for more than 2.5% of the consolidated liabilities of the
Company and its Subsidiaries.  For
purposes of the foregoing, all intercompany assets, revenues and liabilities
that would be properly eliminated in consolidation shall be deemed to be zero.


 


SECTION 11  EFFECTIVENESS; CONDITIONS OF LENDING, ETC.


 


11.1  Effectiveness.  This Agreement shall become effective and
all Existing Letters of Credit shall be deemed to be Letters of Credit
hereunder on the date (the “Effective Date”) on which (a) each of the
conditions precedent specified in Section 11.2 shall have been
satisfied and (b) the Administrative Agent shall have received (i) evidence
that all principal, interest, fees and other amounts payable under the Existing
Agreement have been paid in full by the Company (or will be paid in full upon
the effectiveness hereof), (ii) for the account of each Bank, the upfront fee
payable to such Bank (as previously agreed among the Company, the Arrangers and
such Bank), (iii) all amounts which are then due and payable pursuant to Section 5
and (to the extent billed) Section 14.6 and (iv) all of the
following, each duly executed and dated the Effective Date (or such earlier
date as shall be satisfactory to the Administrative Agent), in form and
substance satisfactory to the Administrative Agent, and each (except for the
Notes, of which only the originals shall be signed) in sufficient number of
signed counterparts to provide one for each Bank:


 


11.1.1  Notes.  The Notes.


 


11.1.2  Resolutions.  Certified copies of resolutions of the
Board of Directors of the Company authorizing or ratifying the execution,
delivery and performance by the Company of this Agreement, the Notes and the
other Loan Documents to which the Company is a party.


 


11.1.3  Consents,
etc.  Certified copies of all
documents evidencing any necessary corporate action, consents and
governmental approvals (if any) required for the execution, delivery and
performance by the Company of the documents referred to in this Section 11.


 


11.1.4  Incumbency
and Signature Certificates.  A
certificate of the Secretary or an Assistant Secretary of the Company
certifying the names of the officer or officers of the


 


42

















 


Company authorized
to sign the Loan Documents to which it is a party, together with a sample of
the true signature of each such officer (it being understood that the
Administrative Agent and each Bank may conclusively rely on such certificate
until formally advised by a like certificate of any changes therein).


 


11.1.5  Confirmation.  A confirmation substantially in the form of Exhibit
I signed by the Company and each Subsidiary.


 


11.1.6  Opinion of
Counsel.  The opinion of Janis
B. Salin, Vice President, General Counsel and Secretary of the Company,
substantially in the form of Exhibit H.


 


11.1.7  Closing
Certificate.  A certificate of
the Chief Executive Officer, the President or any Vice President of the Company
to the effect that (i) all representations and warranties of the Company and
the Guarantors in this Agreement and the other Loan Documents are true and correct
in all material respects on the Effective Date; and (ii) no Event of Default or
Unmatured Event of Default exists or will result from the transactions
contemplated to occur on the proposed Effective Date.


 


11.1.8  Other.  Such other documents as the Administrative
Agent or any Bank may reasonably request.


 


11.2  Conditions.  The obligation (a) of each Bank to
make each Loan and (b) of the Issuing Bank to issue each Letter of Credit
is subject to the following further conditions precedent that:


 


11.2.1
 Compliance with
Warranties, No Default, etc.  Both
before and after giving effect to any borrowing and the issuance of any Letter
of Credit (but, if any Event of Default of the nature referred to in Section 12.1.2
shall have occurred with respect to any other Debt, without giving effect to
the application, directly or indirectly, of the proceeds thereof) the following
statements shall be true and correct:


 


(a)                                  the representations and warranties of the
Company and the Guarantors set forth in this Agreement (excluding Sections
9.6, 9.8 and 9.15) and the other Loan Documents shall be true
and correct in all material respects with the same effect as if then made
(except to the extent stated to relate to an earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date);


 


(b)                                 except as disclosed by the Company to the
Administrative Agent and the Banks pursuant to Section 9.6,


 


(i)                                     no litigation (including derivative
actions), arbitration proceeding, labor controversy or governmental
investigation or proceeding shall be pending or, to the knowledge of the
Company, threatened against the Company or any Subsidiary which might
reasonably be expected to have a Material Adverse Effect


 


43

















 


or which purports to affect the legality, validity or enforceability of
this Agreement, the Notes or any other Loan Document; and


 


(ii)                                  no development shall have occurred in any
litigation (including derivative actions), arbitration proceeding, labor
controversy or governmental investigation or proceeding disclosed pursuant to Section 9.6
which might reasonably be expected to have a Material Adverse Effect; and


 


(c)                                  no Event of Default or Unmatured Event of
Default shall have then occurred and be continuing, and neither the Company nor
any Subsidiary shall be in violation of any law or governmental regulation or
court order or decree where such violation or violations singly or in the
aggregate might reasonably be expected to have a Material Adverse Effect.


 


11.2.2  Confirmatory
Certificate.  If requested by
the Administrative Agent or any Bank (acting through the Administrative Agent),
the Administrative Agent shall have received (in sufficient counterparts
to provide one to each Bank) a certificate dated the date of such requested
Loan or Letter of Credit and signed by a duly authorized representative of the
Company as to the matters set out in Section 11.2.1 (it being
understood that each request by the Company for the making of a Loan or the
issuance of a Letter of Credit shall be deemed to constitute a warranty by the
Company that the conditions precedent set forth in Section 11.2.1
will be satisfied at the time of the making of such Loan or the issuance of
such Letter of Credit), together with such other documents as the
Administrative Agent or any Bank (acting through the Administrative Agent) may
reasonably request in support thereof.


 


SECTION 12 
EVENTS OF DEFAULT AND THEIR EFFECT.


 


12.1  Events of Default.  Each of the following shall constitute
an Event of Default under this Agreement:


 


12.1.1  Non-Payment
of the Loans, etc. 
Default in the payment when due of the principal of any Loan; default
and continuance thereof for five Business Days after notice from the
Administrative Agent, in the payment when due of any reimbursement obligation
with respect to any Letter of Credit; or default, and continuance thereof for
five Business Days, in the payment when due of any interest, fee or other
amount payable by the Company hereunder or under any other Loan Document.


 


12.1.2  Non-Payment
of Other Debt.  Any default
shall occur under the terms applicable to any Debt of the Company or any
Subsidiary (other than an Excluded Subsidiary) in an aggregate amount (for all
such Debt so affected) exceeding $5,000,000 and such default shall (a) consist
of the failure to pay such Debt when due (subject to any applicable grace
period), whether by acceleration or otherwise, or (b) accelerate the maturity
of such Debt or permit the holder or holders thereof, or any trustee or agent
for such holder or holders, to cause such Debt to become due and payable prior
to its expressed maturity.


 


44

















 


12.1.3  Other
Material Obligations.  Default in
the payment when due, or in the performance or observance of, any material
obligation of, or material condition agreed to by, the Company or any
Subsidiary (other than an Excluded Subsidiary) with respect to any purchase or
lease of goods or services exceeding $5,000,000 (except only to the extent that
the existence of any such default is being contested by the Company or such
Subsidiary (other than an Excluded Subsidiary) in good faith and by appropriate
proceedings and appropriate reserves have been made in respect of such
default).


 


12.1.4  Bankruptcy,
Insolvency, etc.  The Company or any
Subsidiary (other than an Excluded Subsidiary) becomes insolvent or generally
fails to pay, or admits in writing its inability or refusal to pay, debts as
they become due; or the Company or any Subsidiary (other than an Excluded
Subsidiary) applies for, consents to, or acquiesces in the appointment of a
trustee, receiver or other custodian for the Company or such Subsidiary (other
than an Excluded Subsidiary) or any property thereof, or makes a general
assignment for the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee, receiver or other custodian is
appointed for the Company or any Subsidiary (other than an Excluded Subsidiary)
or for a substantial part of the property of any thereof and is not discharged
within 60 days; or any bankruptcy, reorganization, debt arrangement, or other
case or proceeding under any bankruptcy or insolvency law, or any dissolution
or liquidation proceeding (except the voluntary dissolution, not under any
bankruptcy or insolvency law, of a Subsidiary (other than an Excluded
Subsidiary), is commenced in respect of the Company or any Subsidiary (other
than an Excluded Subsidiary), and if such case or proceeding is not commenced
by the Company or such Subsidiary (other than an Excluded Subsidiary), it is
consented to or acquiesced in by the Company or such Subsidiary (other than an
Excluded Subsidiary), or remains for 60 days undismissed; or the Company or any
Subsidiary (other than an Excluded Subsidiary) takes any corporate action to
authorize, or in furtherance of, any of the foregoing.


 


12.1.5  Non-Compliance
with Provisions of This Agreement.  (a) Failure by the Company to comply with or to perform any
covenant set forth in Sections 10.5 through 10.21; or (b) failure
by the Company to comply with or to perform any other provision of this
Agreement (and not constituting an Event of Default under any of the other
provisions of this Section 12) and continuance of such failure for
30 days after written notice thereof to the Company from the Administrative
Agent or any Bank.


 


12.1.6  Warranties.  Any warranty made by the Company or any
Subsidiary in any Loan Document is breached or is false or misleading in any
material respect, or any schedule, certificate, financial statement, report,
notice or other writing furnished by the Company or any Subsidiary to the Bank
to the Administrative Agent or any Bank in connection herewith is false or
misleading in any material respect on the date as of which the facts therein
set forth are stated or certified.


 


12.1.7  Pension Plans.  (i) Institution of any steps by the Company
or any other Person to terminate a Pension Plan if as a result of such
termination the Company could be required to make a contribution to such
Pension Plan, or could incur a liability or obligation to such Pension


 


45

















 


Plan, in excess of
$5,000,000; or (ii) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.


 


12.1.8  Judgments.  Final judgments which exceed an aggregate of
$5,000,000 (excluding any portion thereof that is covered by insurance so long
as the insurer has not denied coverage) shall be rendered against the Company
or any Subsidiary (other than an Excluded Subsidiary) and shall not have been
paid, discharged or vacated or had execution thereof stayed pending appeal
within 30 days after entry or filing of such judgments.


 


12.1.9  Change in Control.  Any Change in Control shall occur.


 


12.1.10  Invalidity of
Guaranty, etc.  The Guaranty shall
cease to be in full force and effect with respect to any Guarantor (other than
as a result of a transaction permitted hereunder), any Guarantor shall fail
(subject to any applicable grace period) to comply with or to perform any
applicable provision of the Guaranty to which such Guarantor is a party, or any
Guarantor (or any Person by, through or on behalf of such Guarantor) shall
contest in any manner the validity, binding nature or enforceability of the
Guaranty to which such Guarantor is a party.


 


12.1.11  Invalidity
of Collateral Documents, etc. 
Any Collateral Document shall cease to be in full force and effect with
respect to the Company or any applicable Guarantor (other than by reason of any
action or inaction of the Collateral Agent), the Company or any Guarantor shall
fail (subject to any applicable grace period) to comply with or to perform any
applicable provision of any Collateral Document to which such Person is a
party, or the Company or any Guarantor (or any Person by, through or on behalf
of the Company or such Guarantor) shall contest in any manner the validity,
binding nature or enforceability of any Collateral Document.


 


12.2  Effect of Event of
Default.  If any Event of Default
described in Section 12.1.4 shall occur, the Commitments (if they
have not theretofore terminated) shall immediately terminate and the Notes and
all other obligations hereunder shall become immediately due and payable and
the Company shall become immediately obligated to Cash Collateralize in full
all contingent obligations with respect to Letters of Credit, all without
presentment, demand, protest or notice of any kind; and, if any other Event of
Default shall occur and be continuing, the Administrative Agent (upon written
request of the Required Banks) shall declare the Commitments (if they have not
theretofore terminated) to be terminated and/or declare all Notes and all other
obligations hereunder to be due and payable and/or demand that the Company
immediately Cash Collateralize in full all contingent obligations with respect
to Letters of Credit, whereupon the Commitments (if they have not theretofore
terminated) shall immediately terminate and/or all Notes and all other
obligations hereunder shall become immediately due and payable and/or the
Company shall immediately become obligated to deliver to Cash Collateralize in
full all contingent obligations with respect to Letters of Credit, all without
presentment, demand, protest or notice of any kind.  The Administrative Agent shall promptly advise the Company of any
such declaration, but failure to do so shall not impair the effect of such
declaration.  Notwithstanding the
foregoing, the effect as an Event of Default of any event described in Section 12.1.1
or Section 12.1.4 may be waived by the written concurrence of all
of the Banks, and the effect as an Event of Default of any other event
described in this Section 12 may (subject to Section 14.1)
be


 


46

















 


waived by the
written concurrence of the Required Banks. 
After the expiration or termination of all Letters of Credit, any
remaining Cash Collateral shall be applied by the Administrative Agent to any
remaining obligations hereunder and any excess shall be delivered to the
Company or as a court of competent jurisdiction may elect.


 


SECTION 13 
THE ADMINISTRATIVE AGENT.


 


13.1  Appointment and Authorization.  (a) 
Each Bank hereby irrevocably (subject to Section 13.6)
appoints Bank of America to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto.  The provisions of this Article are
solely for the benefit of the Administrative Agent, the Banks and the Issuing
Bank and neither the Company nor any other Loan Party shall have rights as a
third party beneficiary of any of such provisions.


 


(b)  The Issuing Bank shall act
on behalf of the Banks with respect to all Letters of Credit issued by it and
the documents associated therewith.  The
Issuing Bank shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Section 13 with respect to any act
taken or omission made by the Issuing Bank in connection with Letters of Credit
issued by it or proposed to be issued by it and the applications and agreements
for letters of credit pertaining to such Letters of Credit as fully as if the
term “Administrative Agent”, as used in this Section 13, included
the Issuing Bank with respect to such act or omission and (ii) as additionally
provided in this Agreement with respect to the Issuing Bank.


 


(c)                                  The Swing Line Bank shall act on behalf
of the Banks with respect to all Swing Line Loans and the documents associated
therewith.  The Swing Line Bank shall
have all of the benefits and immunities (i) provided to the Administrative
Agent in this Section 13 with respect to any act taken or omission
made by the Swing Line Bank in connection with the Swing Line Loans made or
proposes to be made hereunder as fully as if the term “Administrative Agent”,
as used in this Section 13, included the Swing Line Bank with
respect to such act or omission and (ii) as additionally provided in this
Agreement with respect to the Swing Line Bank.


 


13.2  Rights as a Bank.  The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a Bank
as any other Bank and may exercise the same as though it were not the
Administrative Agent and the term “Bank” or “Banks” shall, unless otherwise
expressly indicated or the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Company or any Subsidiary or other Affiliate of the Company as if such Person
were not the Administrative Agent hereunder and without any duty to account therefor
to the Banks.


 


47

















 


13.3  Exculpatory Provisions. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the
foregoing, the Administrative Agent:


 


(a)                                  shall
not be subject to any fiduciary or other implied duties, regardless of whether
an Event of Default or Unmatured Event of Default has occurred and is
continuing;


 


(b)                                 shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Banks (or
such other number or percentage of the Banks as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative
Agent shall not be required to take any action that, in its opinion or the opinion
of its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and


 


(c)                                  shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Company or any of its Affiliates that is
communicated to or obtained by it or any of its Affiliates in any capacity.


 


The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Banks
(or such other number or percentage of the Banks as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary) or
(ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Event of
Default or Unmatured Event of Default unless and until notice describing such
Default is given to the Administrative Agent by the Company or a Bank.


 


The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the contents
of any certificate, report or other document delivered hereunder or thereunder
or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Event of Default or Unmatured
Event of Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.


 


13.4  Reliance
by Administrative Agent. 
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any
electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have


 


48

















 


been signed, sent
or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Bank or the Issuing
Bank, the Administrative Agent may presume that such condition is satisfactory
to such Bank or the Issuing Bank unless the Administrative Agent shall have
received notice to the contrary from such Bank or the Issuing Bank prior to the
making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Company), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.


 


13.5  Delegation of
Duties.  The Administrative
Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any
and all of its duties and exercise its rights and powers by or through their
respective affiliates.  The exculpatory
provisions of this Section 13 shall apply to any such sub-agent and
to any affiliate of the Administrative Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative
Agent.


 


13.6  Resignation
of Administrative Agent.  The
Administrative Agent may at any time give notice of its resignation to the
Banks and the Company.  Upon receipt of
any such notice of resignation, the Required Banks shall have the right, in
consultation with the Company, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States.  If no such
successor shall have been so appointed by the Required Banks and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Banks, appoint a successor Administrative Agent meeting
the qualifications set forth above; provided that if the Administrative
Agent shall notify the Company and the Banks that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (a) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (b) all payments, communications
and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Bank directly until such time
as the Required Banks appoint a successor Administrative Agent as provided for
above in this Section.  Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and
the retiring Administrative Agent shall be discharged from all of its duties
and obligations hereunder and under the other Loan Documents (if not already
discharged therefrom as provided above in this Section).  The fees payable by the Company to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such
successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other


 


49

















 


Loan Documents,
the provisions of this Section 13 and Section 14.6
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and its affiliates in respect of any action taken or omitted to
be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.


 


Any resignation by
Bank of America as Administrative Agent pursuant to this Section 13.6
shall also constitute its resignation as Issuing Bank and Swing Line Bank.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring Issuing Bank and Swing Line Bank, (b) the retiring Issuing Bank
and Swing Line Bank shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the successor
Issuing Bank shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring Issuing Bank to effectively assume
the obligations of the retiring Issuing Bank with respect to such Letters of
Credit.


 


13.7  Non-Reliance on
Administrative Agent and other Banks. 
Each Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Bank or any affiliate of any of the
foregoing and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.  Each Bank also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Bank or any of their respective affiliates and based on such documents
and information as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.


 


13.8  No Other Duties.
Anything to the contrary notwithstanding, no Person listed on the cover page
hereof or elsewhere herein as an Arranger, the Syndication Agent or the
Documentation Agent shall have any rights, powers, duties or responsibilities
under this Agreement or any other Loan Document, except, if applicable, in its
capacity as a Bank.


 


13.9  Administrative Agent may File Proofs
of Claims.  In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent (irrespective of whether (i) the
principal of any Loan or any other amount shall then be due and payable
hereunder and (ii) the Administrative Agent shall have made any demand on the
Company or any other Loan Party) shall be entitled and empowered, by
intervention in such proceeding or otherwise: (a) to file and prove a claim for
the whole amount of the principal of and interest on the Loans, all
reimbursement obligations arising under Letters of Credit and all other amounts
that are payable by the Company or any other Loan Party hereunder or in
connection herewith; (b) to file such other documents as may be necessary or
advisable in order to have the claims of the Banks and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Banks and the Administrative Agent and their respective
agents and counsel) allowed in such proceeding; and (c) to collect and receive
any monies or other property payable or deliverable on any such claim


 


50

















 


and to distribute the same.  Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Bank to make such payments to the Administrative Agent and, if the
Administrative Agent shall consent to the making of such payments directly to
the Banks, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent
and its agents and counsel, and any other amounts due the Administrative Agent
under this Agreement or any other Loan Document.


 


Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Bank any plan of reorganization, arrangement, adjustment or composition
affecting the amounts payable to or the rights of any Bank or to authorize the
Administrative Agent to vote in respect of the claim of any Bank in any such
proceeding.


 


13.10  Withholding Tax.


 


(a)                                  If any Bank is a “foreign corporation,
partnership or trust” within the meaning of the Code and such Bank claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Bank agrees to deliver to the Administrative Agent:


 


(i)                                     if such Bank claims an exemption from, or
a reduction of, withholding tax under a United States tax treaty, properly
completed Internal Revenue Service (“IRS”) Form W-8BEN before the
payment of any interest in the first calendar year and before the payment of
any interest in each third succeeding calendar year during which interest may
be paid under this Agreement;


 


(ii)                                  if such Bank claims that interest paid
under this Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such Bank, two
properly completed and executed copies of IRS Form W-8ECI before the payment of
any interest is due in the first taxable year of such Bank and in each
succeeding taxable year of such Bank during which interest may be paid under
this Agreement, and IRS Form W-9; and


 


(iii)                               such other form or forms as may be required under the
Code or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.


 


Such Bank agrees to promptly notify the
Administrative Agent of any change in circumstances which would modify or
render invalid any claimed exemption or reduction.


 


(b)                                 If any Bank claims exemption from, or
reduction of, withholding tax under a United States tax treaty by providing IRS
Form W-8BEN and such Bank sells, assigns, grants a participation in, or
otherwise transfers all or part of the obligations of the


 


51

















 


Company to such Bank, such Bank agrees to notify the Administrative
Agent of the percentage amount in which it is no longer the beneficial owner of
such obligations of the Company hereunder. 
To the extent of such percentage amount, the Administrative Agent will
treat such Bank’s IRS Form W-8BEN as no longer valid.


 


(c)                                  If any Bank claiming exemption from United
States withholding tax by filing IRS Form W-8ECI with the Administrative Agent
sells, assigns, grants a participation in, or otherwise transfers all or part
of the obligations of the Company to such Bank hereunder, such Bank agrees to
undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.


 


(d)                                 If any Bank is entitled to a reduction in
the applicable withholding tax, the Administrative Agent may withhold from any
interest payment to such Bank an amount equivalent to the applicable
withholding tax after taking into account such reduction.  If the forms or other documentation required
by subsection (a) of this Section are not delivered to the
Administrative Agent, then the Administrative Agent may withhold from any
interest payment to such Bank not providing such forms or other documentation
an amount equivalent to the applicable withholding tax.


 


(e)                                  If the IRS or any other governmental
authority of the United States or any other jurisdiction asserts a claim that
the Administrative Agent did not properly withhold tax from amounts paid to or
for the account of any Bank (because the appropriate form was not delivered or
was not properly executed, or because such Bank failed to notify the
Administrative Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Bank shall indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this
Section, together with all costs and expenses (including reasonable fees of
attorneys for the Administrative Agent (including the allocable costs of
internal legal services and all disbursements of internal counsel)).


 


13.11  Non-Receipt
of Funds by the Administrative Agent. 
Unless the Company or Bank, as the case may be, notifies the
Administrative Agent prior to the date on which it is scheduled to make payment
to the Administrative Agent of (a) in the case of a Bank, the proceeds of a
Loan or (b) in the case of the Company, principal, interest, fees or any other
amount payable by the Company to the Administrative Agent for the account of
the Banks, that it does not intend to make such payment, the Administrative
Agent may assume that such payment has been made.  The Administrative Agent may, but shall not be obligated to, make
the amount of such payment available to the intended recipient in reliance upon
such assumption.  If a Bank or the
Company, as the case may be, has not in fact made such payment to the Administrative
Agent, the recipient of such payment shall, on demand by the Administrative
Agent, repay to the Administrative Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on
the date such amount was so made available by the Administrative Agent until
the date the Administrative Agent recovers


 


52

















 


such amount at a
rate per annum equal to (i) in the case of payment by a Bank, the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation; and (ii) in
case of a payment by the Company, the interest rate applicable to the relevant
obligation (or, if no interest rate is stated to be applicable to such
obligation, the rate per annum then applicable to Base Rate Loans).  A notice of the Administrative Agent to the
Company or any Bank with respect to any amount owing pursuant to this Section 13.11
shall be conclusive absent manifest error.


 


13.12  Collateral
Matters.  The Banks irrevocably
authorize the Administrative Agent, at its option and in its discretion, (a) to
release any Lien on any property granted to or held by the Administrative Agent
under any Collateral Document (i) upon termination of the Commitments and
payment in full of all Loans and all other obligations of the Company hereunder
and the expiration or termination of all Letters of Credit; (ii) that is sold
or to be sold or disposed of as part of or in connection with any disposition
permitted hereunder; or (iii) subject to Section 14.1, if approved,
authorized or ratified in writing by the Required Banks; (b) to subordinate any
Lien on any property granted to or held by the Administrative Agent under any
Collateral Document to the holder of any Lien on such property that is
permitted by subsection 10.8(d); and (c) to release any Subsidiary
from its obligations under the Guaranty if such entity ceases to be a
Subsidiary as a result of a transaction permitted hereunder. Upon request by
the Administrative Agent at any time, the Required Banks will confirm in
writing the Administrative Agent’s authority to release or subordinate its
interest in particular types or items of property, or to release any Subsidiary
from its obligations under the Guaranty, pursuant to this Section 13.12.


 


SECTION 14 
GENERAL.


 


14.1  Waiver;
Amendments.  No delay on the
part of the Administrative Agent or any Bank in the exercise of any right,
power or remedy shall operate as a waiver thereof, nor shall any single or partial
exercise by any of them of any right, power or remedy preclude other or further
exercise thereof, or the exercise of any other right, power or remedy.  No amendment, modification or waiver of, or
consent with respect to, any provision of this Agreement or the Notes shall in
any event be effective unless the same shall be in writing and signed and
delivered by Banks having an aggregate Percentage of not less than the
aggregate Percentage expressly designated herein with respect thereto or, in
the absence of such designation as to any provision of this Agreement or the
Notes, by the Required Banks, and then any such amendment, modification, waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given.  No
amendment, modification, waiver or consent shall change the Percentage of any
Bank without the consent of such Bank. No amendment, modification, waiver or
consent shall extend or increase the amount of the Commitment of any Bank
without the consent of such Bank.  No
amendment, modification, waiver or consent shall (i) extend the date for
payment of any principal of or interest on the Loans or any fees payable
hereunder, (ii) reduce the principal amount of any Loan, the rate of interest
thereon or any fees payable hereunder, (iii) release any Guarantor from such
Guarantor’s obligations under the applicable Guaranty or all or substantially
all of the collateral granted under the Collateral Documents or (iv) reduce the
aggregate Percentage required to effect an amendment, modification, waiver or
consent without, in each case, the consent of all Banks.  No provisions of Section 13 or
other


 


53

















 


provision of this
Agreement affecting the Administrative Agent in its capacity as such shall be
amended, modified or waived without the consent of the Administrative
Agent.  No provision of this Agreement
relating to the rights or duties of the Issuing Bank in its capacity as such shall
be amended, modified or waived without the consent of the Issuing Bank.


 


14.2  Confirmations.  The Company and each Bank agree from time to
time, upon written request received by it from the other, to confirm to the
other in writing (with a copy of each such confirmation to the Administrative
Agent) the aggregate unpaid principal amount of the Loans held by such Bank.


 


14.3  Notices.  (a) 
Except as otherwise provided in Sections 2.2.2, 2.2.3
and 2.4.1 and clause (b) below, all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by electronic mail or facsimile as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:


 


(i)             If to the Company, the Administrative
Agent, the Issuing Bank or the Swing Line Bank, to the address, facsimile
number, electronic mail address or telephone number specified for such Person
on Schedule 14.3;


 


(ii)          If to any Bank, to the address, facsimile
number, electronic mail address or telephone number specified in its
Administrative Questionnaire.


 


Notices sent by
hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received or delivery is refused;
notices sent by facsimile shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, such notices
shall be deemed to have been given at the opening of business on the next
business day for the recipient). 
Notices delivered through electronic communications, to the extent
permitted in clause (b) below, shall be effective as provided in such clause
(b).


 


(b)  Notices and other
communications to the Banks (other than the Issuing Bank and the Swing Line
Bank, except as set forth below) may be delivered by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall
not apply to notices to any Bank pursuant to Section 2 or 6
if such Bank has notified the Administrative Agent that it is incapable of
receiving notices under such Sections by electronic communication.  The Administrative Agent, the Issuing Bank,
the Swing Line Bank or the Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.


 


Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of


 


54

















 


an acknowledgement
from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), provided
that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed
to have been sent at the opening of business on the next business day for the
recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause (i)
of notification that such notice or communication is available and identifying
the website address.


 


(c)  Each of the Company, the
Administrative Agent, the Issuing Bank and the Swing Line Bank may change its
address, facsimile number, telephone number or electronic mail address for
notices and other communications hereunder by notice to the other parties
hereto.  Each other Bank may change its
address, facsimile number, telephone number or electronic mail address for
notices and other communications hereunder by notice to the Company, the
Administrative Agent, the Issuing Bank and the Swing Line Bank.


 


(d)  The Administrative Agent,
the Issuing Bank, the Swing Line Bank and the other Banks shall be entitled to
rely and act upon any notice (including any telephonic notice pursuant to Section 2.2.2,
2.2.3 and 2.4.1) purportedly given by or on behalf of the Company
even if (i) such notice was not made in a manner specified herein, was
incomplete or was not preceded or followed by any other form of notice
specified herein or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. 
The Company shall indemnify the Administrative Agent, the Issuing Bank,
the Swing Line Bank, each other Bank and their respective affiliates for all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on any notice purportedly given by or on behalf of the Company.  All telephonic notices to and other
telephonic communications with the Administrative Agent, the Issuing Bank
and/or the Swing Line Bank may be recorded by such Person, and each of the
parties hereto hereby consents to such recording.


 


(e)  Without limiting the
foregoing provisions of this Section 14.3, any document required to
be delivered by the Company hereunder that is included in materials filed or to
be filed by the Company with the SEC may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Company posts such document or provides a link thereto on the Company’s website
on the Internet at the website address listed on Schedule 14.3; or
(ii) on which such documents are posted on the Company’s behalf on an Internet
or intranet website to which each Bank and the Administrative Agent have access
(whether a commercial, third-party website or sponsored by the Administrative
Agent); provided that: (i) the Company shall deliver paper copies of all
documents to the Administrative Agent or any Bank if such Person requests the
Company to deliver such paper copies and (ii) the Company shall notify the
Administrative Agent and each Bank (by facsimile or electronic mail) of the
posting of any such document and provide to the Administrative Agent by
electronic mail an electronic version (i.e., a soft copy) of such
document.  Notwithstanding anything
contained herein, in every instance the Company shall be required to provide a
paper copy of each compliance certificates required by Section 10.1.3
to the Administrative Agent.  Except for
such compliance certificates, the Administrative Agent shall have no obligation
to request the delivery


 


55

















 


or to maintain
copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Company with any such request for
delivery, and each Bank shall be solely responsible for requesting delivery to
it or maintaining its copies of such.


 


14.4  Computations.  Where the character or amount of any
asset or liability or item of income or expense is required to be determined,
or any consolidation or other accounting computation is required to be made,
for the purpose of this Agreement, such determination or calculation shall, to
the extent applicable and except as otherwise specified in this Agreement, be
made in accordance with GAAP, consistently applied; provided that if the
Company notifies the Administrative Agent that the Company wishes to amend any
covenant in Section 10 to eliminate or to take into account the
effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Company that the Required Banks wish to amend
Section 10 for such purpose), then the Company’s compliance with
such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice
is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.


 


14.5  Regulation U.  Each Bank represents that it in good
faith is not relying, either directly or indirectly, upon any Margin Stock as
collateral security for the extension or maintenance by it of any credit
provided for in this Agreement.


 


14.6  Expenses;
Indemnity; Damage Waiver.


 


14.6.1  Expenses.  The Company agrees to pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution, delivery
and administration of this Agreement and the other Loan Documents or any
amendment, modification or waiver of the provisions hereof or thereof (whether
or not the transactions contemplated hereby or thereby shall be consummated),
(ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and each any Bank
(including the reasonable fees, charges and disbursements of any internal or
external counsel for the Administrative Agent or any Bank) in connection with
the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or
(B) in connection with the Loans made or Letters of Credit issued
hereunder, including all such reasonable out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans or Letters
of Credit.


 


14.6.2  Indemnification
by the Company.  The Company
agrees to indemnify the Administrative Agent (and any sub-agent thereof), each
Bank and each of their respective Affiliates, and the officers, directors,
employees, partners, agents and advisors of the foregoing (each such Person, an
“Indemnitee”) against, and to hold each Indemnitee harmless from, any


 


56

















 


and all losses
(excluding lost profits), claims, damages, liabilities and related expenses
(including the reasonable fees and charges of any internal or external counsel
for any Indemnitee, but limited to one external counsel at any time for any
Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Company or any other Loan Party arising out of, in
connection with or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
the Company or any Subsidiary, or any Environmental Claim related in any way to
the Company or any Subsidiary or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party, the Company or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by the Company or any other Loan Party
against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Company or such Loan Party
has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.


 


14.6.3  Reimbursement
by Banks.  To the extent that
the Company for any reason fails to indefeasibly pay any amount required under Section 14.6.1
or 14.6.2 to be paid by it to the Administrative Agent (or any
sub-agent thereof) or the Issuing Bank or any of their respective Affiliates,
or any officer, director, employee, partner, agent or advisor of any of the
foregoing (each such Person, an “Agent-Related Person”), each Bank
severally agrees to pay to such Agent-Related Person such Bank’s Percentage
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent or the Issuing Bank in its capacity as such, or against
any other Agent-Related Person acting for the Administrative Agent (or any such
sub-agent) or the Issuing Bank in connection with such capacity.


 


14.6.4  Waiver
of Consequential Damages, etc. 
To the fullest extent permitted by applicable law, the Company agrees
(on behalf of itself and each other Loan Party) that it will not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential, exemplary or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, any Loan or Letter of Credit or the use of the proceeds
thereof or any transaction contemplated hereby or by any other Loan 


 


57

















 


Document.  No Indemnitee shall be liable for any
damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement or any
other Loan Documents or the transactions contemplated hereby or thereby.


 


14.6.5  Payments.  All amounts payable under this Section 14.6
shall be due not later than ten Business Days after written demand therefor.


 


14.7  Subsidiary
References.  The provisions of
this Agreement relating to Subsidiaries shall apply only during such times as
the Company has one or more Subsidiaries.


 


14.8  Captions.  Section captions used in this
Agreement are for convenience only and shall not affect the construction
of this Agreement.


 


14.9  Assignments;
Participations.


 


14.9.1  Assignments.  Any Bank may, with the prior written
consents of the Company (so long as no Event of Default or Unmatured Event of
Default exists) and the Administrative Agent (which consents shall not be
unreasonably delayed or withheld and shall not be required in the case of an
assignment by a Bank to one of its affiliates or to another existing Bank), at
any time assign and delegate to one or more commercial banks or other Persons
(any Person to whom such an assignment and delegation is to be made being
herein called an “Assignee”), all or any fraction of such Bank’s Loans
and Commitment (which assignment and delegation shall be of a constant, and not
a varying, percentage of all the assigning Bank’s Loans and Commitment) in a
minimum aggregate amount equal to the lesser of (i) the amount of the assigning
Bank’s remaining Commitment and (ii) $5,000,000; provided that (a) no
assignment and delegation may be made to any Person if, at the time of such
assignment and delegation, the Company would be obligated to pay any greater
amount under Section 7.6 or Section 8 to the Assignee
than the Company is then obligated to pay to the assigning Bank under such
Sections (and if any assignment is made in violation of the foregoing, the
Company will not be required to pay the incremental amounts) and (b) the
Company and the Administrative Agent shall be entitled to continue to deal
solely and directly with such Bank in connection with the interests so assigned
and delegated to an Assignee until the date when all of the following
conditions shall have been met:


 


(x)                         five Business Days (or such lesser
period of time as the Administrative Agent and the assigning Bank shall agree)
shall have passed after written notice of such assignment and delegation,
together with payment instructions, addresses and related information with
respect to such Assignee, shall have been given to the Company and the
Administrative Agent by such assigning Bank and the Assignee;


 


(y)                       the assigning Bank and the
Assignee shall have executed and delivered to the Company and the
Administrative Agent an assignment agreement substantially in the form of Exhibit
H (an “Assignment Agreement”), together with any documents required
to be delivered thereunder, which Assignment Agreement shall have been
consented to 


 


58

















 


by the Company and the Administrative Agent (to the extent applicable)
and accepted by the Administrative Agent; and


 


(z)                         the assigning Bank or the
Assignee shall have paid the Administrative Agent a processing fee of $3,500.
From and after the date on which the conditions described above have been met,
(x) such Assignee shall be deemed automatically to have become a party hereto
and, to the extent that rights and obligations hereunder have been assigned and
delegated to such Assignee pursuant to such Assignment Agreement, shall have
the rights and obligations of a Bank hereunder, and (y) the assigning Bank, to
the extent that rights and obligations hereunder have been assigned and
delegated by it pursuant to such Assignment Agreement, shall be released from
its obligations hereunder.  If the
Assignee was not previously a party hereto, then within five Business Days
after effectiveness of any Assignment Agreement, the Company shall execute and
deliver to the Administrative Agent (for delivery to the Assignee) a new Note
in favor of the Assignee.  Any attempted
assignment and delegation not made in accordance with this Section 14.9.1
shall be null and void.


 


Notwithstanding the
foregoing provisions of this Section 14.9.1 or any other provision
of this Agreement, any Bank may at any time assign all or any portion of its
Loans and its Note to a Federal Reserve Bank (but no such assignment shall
release any Bank from any of its obligations hereunder).


 


14.9.2  Participations.  Any Bank may at any time sell to one or more
commercial banks or other Persons participating interests in any Loan owing to
such Bank, the Note held by such Bank, the Commitment of such Bank, the direct
or participation interest of such Bank in any Letter of Credit or any other
interest of such Bank hereunder (any Person purchasing any such participating
interest being herein called a “Participant”); provided that any
Bank selling any such participating interest shall give notice thereof to the
Company.  In the event of a sale by a
Bank of a participating interest to a Participant, (x) such Bank shall remain
the holder of its Note for all purposes of this Agreement, (y) the Company and
the Administrative Agent shall continue to deal solely and directly with such
Bank in connection with such Bank’s rights and obligations hereunder and (z)
all amounts payable by the Company shall be determined as if such Bank had not
sold such participation and shall be paid directly to such Bank.  No Participant shall have any direct or indirect
voting rights hereunder except with respect to any of the events (excluding the
events described in clause (iv) thereof) described in the fifth sentence
of Section 14.1.  Each Bank
agrees to incorporate the requirements of the preceding sentence into each
participation agreement which such Bank enters into with any Participant.  The Company agrees that if amounts
outstanding under this Agreement and the Notes are due and payable (as a result
of acceleration or otherwise), each Participant shall be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement, any Note and with respect to any Letter of Credit to the same
extent as if the amount of its participating interest were owing directly to it
as a Bank under this Agreement or such Note; provided that such right of
setoff shall be subject to the obligation of each Participant to share with the
Banks, and the Banks agree to share with each Participant, as provided in Section 7.5.  The Company also agrees that each
Participant shall be entitled to the benefits of Section 7.6 and Section 8
as if it were a Bank


 


59

















 


(provided that no
Participant shall receive any greater compensation pursuant to Section 7.6
or Section 8 than would have been paid to the participating Bank if
no participation had been sold).


 


14.10  Governing Law.  This Agreement and each Note shall be a
contract made under and governed by the internal laws of the State of
Illinois.  Whenever possible each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.  All
obligations of the Company and rights of the Administrative Agent and the Banks
expressed herein or in any other Loan Document shall be in addition to and not
in limitation of those provided by applicable law.


 


14.11  Counterparts.  This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Agreement.


 


14.12  Successors
and Assigns.  This Agreement
shall be binding upon the Company, the Banks and the Administrative Agent
and their respective successors and assigns, and shall inure to the benefit of
the Company, the Banks and the Administrative Agent and the successors and
assigns of the Banks and the Administrative Agent.


 


14.13  Survival
of Certain Provisions.  All
obligations provided for in Section 8.8, 13.10 and 14.6
shall survive repayment of the Loans, cancellation of the Notes, cancellation
or expiration of the Letters of Credit, any foreclosure under, or any
modification, release or discharge of, any of the Collateral Documents and any
termination of this Agreement.


 


14.14  Forum
Selection and Consent to Jurisdiction. 
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.  THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE.  THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF ILLINOIS.  THE COMPANY
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY


 


60

















 


OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. 
TO THE EXTENT THAT THE COMPANY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE
OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE COMPANY HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.


 


14.15  Waiver of Jury
Trial.  EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND EACH BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


61

















 


	
   

  	
  Delivered at Chicago, Illinois, as of the day and

  year first above written.

  
	
   

  	
   

  
	
   

  	
  TETRA TECH, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  DAVID W. KING

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice President and

  Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., as Administrative

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  PAUL FOLINO

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., as Swing Line Bank

  and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  JENNIFER L. GERDES

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as

  Documentation Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  JANICE T. THEDE

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, N.A. as Syndication

  Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  ROBERT LOUK

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-1

















 


	
   

  	
  HARRIS TRUST AND SAVINGS BANK, as a

  Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  SHAHROKH SHAH

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LASALLE BANK, N.A., as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  STEVE TREPICCIONE

  	
   

  
	
   

  	
  Title:

  	
  First Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNION BANK OF CALIFORNIA., as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  PETER THOMPSON

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NORTHERN TRUST, as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  JOHN E. BURDA

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-2

















 


SCHEDULE 1.1


 


PRICING SCHEDULE


 


The Base Rate Margin, the
Eurodollar Margin, the LC Fee Rate and the Facility Fee Rate, respectively,
shall be determined in accordance with the table below and the other provisions
of this Schedule 1.1.


 


	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  	
  Level IV

  	
   

  
	
  Eurodollar Margin

  	
   

  	
  0.400

  	
  %

  	
  0.625

  	
  %

  	
  0.825

  	
  %

  	
  1.000

  	
  %

  
	
  Base Rate Margin

  	
   

  	
  0.000

  	
  %

  	
  0.000

  	
  %

  	
  0.250

  	
  %

  	
  0.500

  	
  %

  
	
  LC Fee Rate

  	
   

  	
  0.400

  	
  %

  	
  0.625

  	
  %

  	
  0.825

  	
  %

  	
  1.000

  	
  %

  
	
  Facility Fee Rate

  	
   

  	
  0.225

  	
  %

  	
  0.250

  	
  %

  	
  0.300

  	
  %

  	
  0.375

  	
  %

  



 


Level I applies when the Adjusted Leverage
Ratio is less than 1.25 to 1.


 


Level II applies when the Adjusted Leverage
Ratio is equal to or greater than 1.25 to 1 but less than 1.75 to 1.


 


Level III applies when the Adjusted Leverage
Ratio is equal to or greater than 1.75 to 1 but less than 2.25 to 1.


 


Level IV applies when the Adjusted Leverage
Ratio is equal to or greater than 2.25 to 1.


 


Initially, the Eurodollar
Margin, the Base Rate Margin, the LC Fee Rate and the Facility Fee Rate shall
be based on Level II.  Each of the
foregoing shall be adjusted, to the extent applicable, on each date on which
financial statements are required to be delivered pursuant to Section 10.1.1
or 10.1.2 based on the Adjusted Leverage Ratio as of the last day of the
period covered by such financial statements; provided that if the
Company fails to deliver the financial statements required by Section 10.1.1
or 10.1.2, as applicable, and the Compliance Certificate required by Section 10.1.3
by the due date therefor, then Level IV shall apply from such date until such
financial statements and Compliance Certificate are delivered.


 


Schedule 1.1

















 


SCHEDULE 2.1


 


BANKS AND PERCENTAGES


 


	
  Bank

  	
   

  	
  Amount of

  Commitment

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  21

  	
  %

  
	
  Harris Trust and Savings Bank

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  21

  	
  %

  
	
  Wells Fargo Bank, N.A.

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  17

  	
  %

  
	
  U.S. Bank National Association

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  13

  	
  %

  
	
  Lasalle Bank, National Association

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  11

  	
  %

  
	
  Union Bank of California

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  11

  	
  %

  
	
  Northern Trust

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  6

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTALS

  	
   

  	
  $

  	
  235,000,000

  	
   

  	
  100

  	
  %

  



 


Schedule 2.1

















 


SCHEDULE 9.6


 


LITIGATION AND CONTINGENT LIABILITIES


 


-NONE-


 


Schedule 9.6

















 


SCHEDULE 9.8


 


SUBSIDIARIES


 


	
  Subsidiaries Not Excluded

  	
   

  	
  Excluded
  Subsidiaries*

  
	
  GeoTrans, Inc.

  	
   

  	
  America’s Schoolhouse Consulting Services, Inc.

  
	
  Tetra Tech EM Inc.

  	
   

  	
  Chen Northern, Inc.

  
	
  KCM, Inc.

  	
   

  	
  Contract Operations - 2, Inc.

  
	
  SCM Consultants, Inc.

  	
   

  	
  Foster Wheeler Environmental Corporation

  
	
  Whalen & Company, Inc.

  	
   

  	
  Kansas City Testing Laboratory, Inc.

  
	
  Tetra Tech NUS, Inc.

  	
   

  	
  KCM International, Inc.

  
	
  MFG, Inc.

  	
   

  	
  LAL Corporation

  
	
  Tetra Tech Canada Ltd.

  	
   

  	
  Nebraska Testing Corporation

  
	
  Tetra Tech Construction Services, Inc.

  	
   

  	
  River Corridor Closure, LLC

  
	
  Cosentini Associates, Inc.

  	
   

  	
  SCM Architecture and Planning PC

  
	
  Evergreen Utility Contractors, Inc.

  	
   

  	
  SCM Staff Placement Specialists, Inc.

  
	
  eXpert Wireless Solutions, Inc.

  	
   

  	
  SulTech

  
	
  FHC, Inc.

  	
   

  	
  Tetra Tech Caribe, Inc.

  
	
  Rizzo Associates, Inc.

  	
   

  	
  Tetra Tech Consulting & Remediation, Inc.

  
	
  Tetra Tech RMC, Inc.

  	
   

  	
  Tetra Tech Executive Services, Inc.

  
	
  Vertex Engineering Services, Inc.

  	
   

  	
  Tetra Tech International (BVI) Ltd.

  
	
  Western Utility Contractors, Inc.

  	
   

  	
  Tetra Tech Leasing, LLC

  
	
  Sciences International, Inc.

  	
   

  	
  Tetra Tech Technical Services, Inc.

  
	
  The Thomas Group of Companies, Inc.

  	
   

  	
  Tetra Tech Wired Communications of California,
  Inc.

  
	
  Hartman & Associates, Inc.

  	
   

  	
  Thomas Aquatics, LLC

  
	
  Ardaman & Associates, Inc.

  	
   

  	
  Thomas Communications & Technologies, LLC

  
	
  Tetra Tech FW, Inc.

  	
   

  	
  Thomas Environmental Services, LLC

  
	
  Engineering Management Concepts, Inc.

  	
   

  	
  Thomas Management Services, LLC

  
	
  Advanced Management Technology, Inc.

  	
   

  	
  Western Utility Cable, Inc.

  
	
   

  	
   

  	
  Whalen do Brasil, Ltda.

  
	
   

  	
   

  	
  Whalen Service Corps Inc.

  
	
   

  	
   

  	
  Whalen/Sentrex LLC

  



 












*Excluded subsidiaries non-related company assets and revenue do not
exceed 2.5% of the consolidated total assets or revenue


 


Schedule 9.8

















 


SCHEDULE 9.15


 


ENVIRONMENTAL MATTERS


 


-NONE-


 


Schedule 9.15

















 


SCHEDULE 10.7

EXISTING DEBT


 


 


	
  Nature/Lender/Note

  	
   

  	
  Maturity

  	
   

  	
  Amount

  
	
  TERM DEBT

  	
   

  	
   

  	
   

  	
   

  
	
  Deferred Compensation Obligation

  	
   

  	
  11/30/13

  	
   

  	
  188,885

  
	
  1st Source Bank

  	
   

  	
  07/02/06

  	
   

  	
  138,822

  
	
  1st Source Bank

  	
   

  	
  07/11/06

  	
   

  	
  139,197

  
	
  1st Source Bank

  	
   

  	
  08/01/06

  	
   

  	
  131,793

  
	
  John Deere Credit

  	
   

  	
  08/01/06

  	
   

  	
  78,700

  
	
  John Deere Credit

  	
   

  	
  08/01/06

  	
   

  	
  133,560

  
	
  John Deere Credit

  	
   

  	
  08/01/06

  	
   

  	
  55,638

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SENIOR SECURED
  NOTES

  	
   

  	
   

  	
   

  	
   

  
	
  AR-1

  	
   

  	
  5/30/2011

  	
   

  	
  6,000,000

  
	
  AR-2

  	
   

  	
  5/30/2011

  	
   

  	
  6,000,000

  
	
  AR-3

  	
   

  	
  5/30/2011

  	
   

  	
  6,000,000

  
	
  AR-4

  	
   

  	
  5/30/2011

  	
   

  	
  3,000,000

  
	
  AR-5

  	
   

  	
  5/30/2011

  	
   

  	
  500,000

  
	
  AR-6

  	
   

  	
  5/30/2011

  	
   

  	
  3,000,000

  
	
  AR-7

  	
   

  	
  5/30/2011

  	
   

  	
  500,000

  
	
  AR-8

  	
   

  	
  5/30/2011

  	
   

  	
  17,000,000

  
	
  AR-9

  	
   

  	
  5/30/2011

  	
   

  	
  3,000,000

  
	
  AR-10

  	
   

  	
  5/30/2011

  	
   

  	
  12,000,000

  
	
  AR-11

  	
   

  	
  5/30/2011

  	
   

  	
  3,000,000

  
	
  AR-12

  	
   

  	
  5/30/2011

  	
   

  	
  7,500,000

  
	
  AR-13

  	
   

  	
  5/30/2011

  	
   

  	
  7,500,000

  
	
  AR-14

  	
   

  	
  5/30/2011

  	
   

  	
  7,000,000

  
	
  AR-15

  	
   

  	
  5/30/2011

  	
   

  	
  3,000,000

  
	
  AR-16

  	
   

  	
  5/30/2011

  	
   

  	
  5,000,000

  
	
  AR-17

  	
   

  	
  5/30/2011

  	
   

  	
  2,000,000

  
	
  BR-1

  	
   

  	
  5/30/2008

  	
   

  	
  6,560,000

  
	
  BR-2

  	
   

  	
  5/30/2008

  	
   

  	
  320,000

  
	
  BR-3

  	
   

  	
  5/30/2008

  	
   

  	
  80,000

  
	
  BR-4

  	
   

  	
  5/30/2008

  	
   

  	
  240,000

  
	
  BR-7

  	
   

  	
  5/30/2008

  	
   

  	
  4,800,000

  
	
  BR-6

  	
   

  	
  5/30/2008

  	
   

  	
  2,400,000

  



 


Schedule 10.7

















 


SCHEDULE 10.8


 


EXISTING LIENS


 


-NONE-


 


Schedule 10.8

















 


SCHEDULE 14.3


 


ADDRESSES FOR NOTICES


 


TETRA TECH, INC.


 


3475 East Foothill Boulevard


Pasadena, California  91107


Attention: Kimberly Gant


Telephone: 626-470-2582


Facsimile: 626-470-2782


e-mail: kim.gant@tetratech.com


 


BANK
OF AMERICA, N.A.,


as Administrative Agent


 


Agency Management Services


231 South LaSalle Street


Chicago, Illinois 60697


Attention:  Paul Folino


Telephone: 312-828-1846


Facsimile:  877-206-8413


e-mail: paul.l.folino@bankofamerica.com


 


BANK
OF AMERICA, N.A.,


as Swing Line Bank, Issuing Bank and as a Bank


 


231 South LaSalle Street


Chicago, Illinois 60697


Attention: Jennifer Gerdes


Telephone: 312-828-2892


Facsimile:  312-974-0761


e-mail: jennifer.gerdes@bankamerica.com


 


Schedule 14.3